Proclamations, Oaths, etc.

535. Oath of Interpreter to a Deaf and Dumb Witness.

You shall well and truly interpret between the court, the jury, the counsel and the witness, E. F., here produced in behalf of A. B., in this issue joined between A. B., plaintiff, and Y. Z., defendant. So help you God.

536. Oath of Party, or Interested Witness, Preliminary to Evidence of the Contents of a Paper Not Produced.

You shall true answers make to such questions as shall be put to you touching the power or control you have over any paper or the loss or destruction of any paper which would be proper evidence in this cause. help you God.

So

537. Oath of a Party, or Interested Witness, Preliminary to Proving the Handwriting of a Subscribing Witness.

You shall true answers make to such questions as shall be put to you touching your [or, the plaintiff's; or, defendant's] ability to procure the attendance of G. H., a subscribing witness to this paper [or, the paper in question]. So help you God.

538. Proclamation for Adjournment.

Hear ye, hear ye, hear ye: All manner of persons who have any further business to do at this Circuit Court and Court of Oyer and Terminer may depart hence, and appear here again to-morrow morning, at which time these courts are adjourned.

o'clock, to

539. Proclamation for Opening Court After Adjournment. Hear ye, hear ye, hear ye: All manner of persons who have been adjourned over to this hour, and have any further business to do at this Circuit Court and Court of Oyer and Terminer may draw near, and give their attendance, and they shall be heard.

540. Oath of Constables, on Retiring With a Jury, or Jurors, on Leave. You shall retire with such jurors as have leave of absence from this court; you shall not speak to them yourself in relation to this trial, nor suffer any person to speak to them; and you shall return with them without delay. So help you God.

541. Oath of Constables to Keep Jury on An Adjournment.

You shall retire with the jury to some "convenient room, to be furnished by the sheriff; you shall not suffer any person to speak to them, nor speak to them yourself in relation to this trial, and you shall return with them at the order of the court. So help you God.

Verdict.

Entries.

Judgment.

542. Oath of Constable Who Attends the Jury, When They Retire to Consider their Verdict in Civil and Criminal Cases.

You shall well and truly keep every person sworn on this jury, in some private and convenient place, without meat or drink, water excepted; you shall not suffer any person to speak to them, nor speak to them yourself, without leave of the court, except it be to ask them whether they have agreed on their verdict, until they have agreed on their verdict. So help you God.

543. Taking Verdict in a Civil Cause.

Gentlemen of the jury: Please answer to your names. [Call them one by one.] Have you agreed upon your verdict?* How do you find? [The foreman states the finding of the jury; the clerk then enters the verdict and continues:] Gentlemen, listen to your verdict as it stands recorded. You say you find [etc., as the finding may be]; and so you say all.

Verdict for defendant [or,

JURORS.

[Insert names.]

WITNESSES.

[Insert names.]

verdict for plaintiff, damages, $

verdict for plaintiff against defendant, Y. Z., damages, $

for the defendant, E. F.; or, if it be a special verdict, insert the same at length].* [Signature of] Clerk.

545. Entry of Verdict, With Assessment of Value of Personal Property. Supreme Court,

A. B. against

Y. Z.

County of, etc. [as in the preceding form to the *, and then add:] and the jury assess the value of the said [mention the property in question] at dollars: [If necessary add and they further assess the damages of the said defendant by occasion of the delivery and detention of the said property, at

dollars.] [Signature of] Clerk.

Supreme Court, A. B. against

Y Z

546. Entry of Judgment.

Judgment,

[Date.]

This cause being at issue upon the facts and a trial by

Taking Verdicts.

Polling Jury.

jury having been had, on which a verdict was found for the plaintiff, that, etc. [state the finding; or, if there was no jury, say: and the same having been submitted to the court, decision was rendered, etc.]

Now, on motion of G. H., attorney for the plaintiff, it is ordered and adjudged by the said court, that, etc. [as the verdict may be].

Clerk.

547. Taking Verdict Where Personal Property is in Question. [As in Form 543 to the *, and then continue:] How do you find? [The foreman answers: We find the title of the horse in question to be in the plaintiff, and assess the value thereof at one hundred dollars. [The clerk enters the verdict, and then adds :] Gentlemen, listen to your verdict as it stands recorded. You say you find, etc. [as above]; and so you say all.

548. Taking Verdict in Actions For Damages.

[As in Form 543 to the *, and then continue:] How do you find? [The foreman answers: We find for the defendant; or, We find for the plaintiff dollars damages. [The clerk enters the verdict, and again repeats the finding, and makes the inquiry, as in the preceding form.]

549. Taking Verdict in Cases of Lunacy, etc.

[As in Form 543 to the *, and then continue:] How do you find? [The foreman answers: We find that A. B. is a lunatic, of unsound mind, and incapable of managing or conducting his affairs; or, that A. B. was of unsound mind at the time of the execution of the will [or, deed] in question -to wit: on the day of 18, and incompetent to execute the same; or, that A. B. was of unsound mind, and incompetent to contract matrimony, at the time of the solemnization of the marriage to E. D.-to wit: on the day of 18 ] [The clerk then enters the verdict, repeats the finding, and makes the inquiry, as in Form 547.]

550. Taking Verdict in Action For Recovery of Real Property. [As in Form 543 to the*, and then continuing: ] How do you find? [The foreman answers: We find the title of the land in question to be in the plaintiff; or, defondant: If there is a claim for the mesne profits, add: and assess the damages for withholding the said premises, against the defendant, dollars. The clerk enters the verdict, repeats the finding, and makes the inquiry, as in Form 547.]

at

551. Polling Jury in Civil Cases.

[When the polling of the jury is demanded, the clerk will begin with the first name on the panel :]

A. B., you say you find [as the verdict may be: after the answer is given, then call the next juror]. C. D., is that your verdict? [Proceed in this

Oaths.

Drawing Jury.

manner through the list, and when all have answered, say :] Then, gentlemen of the jury, hearken to the verdict, as the court has recorded it. You say you find [as the verdict may be]; and so you say all.

552. Oath on Application to Excuse, or Discharge, a Juror or Constable.

You shall true answers make to such questions as shall be put to you, touching your application [or, the application for and in behalf of E. F.] to be discharged [or, excused] from attendance as a juror [or, constable] at this court. So help you God.

553. On Application of Juror, or Constable, for a Remission of Fine. You shall true answers make to such questions as shall be put to you, touching your application [or, the application for and in behalf of E. F.] for the remission of your [or, his] fine, for default in attending as a juror [or, constable] at this [or, the last] term of this court. So help you God.

554. Oath of Poor Witness, on Application for Expenses.

You shall true answers make to such questions as shall be put to you, touching your application for the expenses of your attendance at this court, as a witness in behalf of the people of this State. So help you God.

jurors will be drawn at this office, to serve at a Circuit Court and Court of Oyer and Terminer [or, Court of Sessions], to be held in and for the county at the City Hall, in the city of

.of

day of

State of

of New York.

on

[Signature of] Clerk.

556. Notice of Drawing Additional Jurors.

. In the

the

Court of the State

County of
Whereas, in my opinion, more than thirty-six jurors will
attend the Circuit Court and Court of Oyer and Terminer,

be required to
to be next held in and for the county of

on the day of next, I do hereby order and direct that twenty-four additional jurors, to serve at said court, be drawn and summoned according to law. WITNESS my hand, the day of

State of

[Signature of]

Justice of the Supreme Court of the State of New York.

Clerk's Office. Notice is hereby

, County of given, that on the day of 18, in pursuance of the foregoing order for twenty-four additional jurors, a panel of petit-jurors will be drawn at this office, to serve at a Circuit Court and Court of Oyer and Terminer, to be held in and for the county of

General Principles.

CHAPTER XXIII.

CONTRACTS.

THE law requires certain contracts to be reduced to writing and signed, in order to give them binding force. The object of this is to prevent misunderstanding, and preclude attempts to prove important contracts by false or loose verbal testimony in cases where the minds of the parties never actually met in agreement. The statute regulating this subject is called the Statute of Frauds. It is to the following effect:

In the following cases, every agreement is void, unless such agreement, or some note or memorandum thereof, expressing the consideration,(a) be in writing, and subscribed by the party to be charged therewith:

1. Every agreement that by its terms is not to be performed within one year from the making thereof;

2. Every special promise to answer for the debt, default or miscarriage of another person;

3. Every agreement, promise or undertaking, made upon consideration of marriage, except mutual promises to marry.

Every contract for the sale of any goods, chattels or things, for the price of fifty dollars, or more, is void, unless:

1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or,

2. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or,

3. Unless the buyer shall, at the time, pay some part of the purchase-money. No interest in lands, other than leases for a term not exceeding one year, nor any trust or power relating to lands, can be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance, in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing; but this does not affect wills, implied trusts, etc.

Another rule of law having the same object as one of its reasons, is that where parties have reduced their intentions to writing, the terms of the written instrument, if clear and unambiguous in themselves, are deemed to be the best evidence of what is intended. And the writing cannot be contradicted or varied by parol evidence aiming to show that something different was designed.

A written contract executed by an agent on behalf of a known principal, ought to purport on its face to be the contract of the principal, and to be signed with the name of the principal, and not with that of the agent alone. A person may become bound by any mark or designation he sees fit to adopt, provided he signs it as a substitute for his name, and intends to be bound by it. No technical words, or order of words, are requisite to make a condition precedent or subsequent, but it depends on the good sense and plain understanding of the contract, and the acts to be performed. The same words may operate as either a condition precedent or subsequent, according to the nature of the transaction, and as evincing the intention of the parties. The precedency depends not upon the order of the clauses, but upon the order of time in which the intent of the transaction requires their performance. It is best, therefore, to have the conditions distinctly expressed, that there may be no doubt of the intention in this respect.

(a) The requirement that the consider- pealed in New York. Laws of 1868, 802, ation be expressed has recently been re- chap. 464.