§ 319. The officer must thereupon immediately summon each of the persons named in the list, by giving him the notice mentioned in the last section personally, or by leaving it at his place of residence with some person of suitable age and discretion, and must return the list to the court, at its opening on the day for which the jury was drawn, specifying the persons summoned, and the manner in which each was notified.

§ 320. The court to which the list is returned, may impose a fine, not exceeding five dollars, for the neglect of a juror, without reasonable cause, to attend. But if the notice were not personally served, the fine cannot be imposed, until, upon an order to show cause, an opportunity is afforded him to be heard.

§ 321. The provisions of sections 277 and 278, in respect to grand jurors, (substituting the word justices' in place of the word grand,) apply to justices' jurors.

ARTICLE IX.

DRAWING AND SUMMONING THE TRIAL JURY, IN SPECIAL PROCEEDINGS.

SECTION 322. Trial jury in a special proceeding, in a court.

323. Manner of drawing jury.

324. Order for jury must specify the number.

325. Special jury before justice.

326. Jury in special cases, before other officers.

§ 322. The trial jury in a special proceeding in a court, is the same which is drawn and summoned for the trial of questions of fact therein.

§ 323. A trial jury, when required in a special proceeding before a judicial officer, as provided in this code, must be drawn as follows:

1. If before a justice of the peace or of a justice's court, from the justice's undrawn jury box:

2. If before any other judicial officer, from the undrawn jury box of the county in which the trial is to be had. But if it be before a judge elected in a city, the clerk must return to the box, every ballot containing the name of a person not stated therein to reside in the city in which the trial is to be had.

§ 324. The order for a jury must specify the number of jurors to be drawn; and when made by a judicial officer other than a justice of the peace or of a justice's court in a city, must specify the time and place for which it is to be drawn.

§ 325. The jury, in a special proceeding before a justice, must be drawn and summoned as provided in sections 316, 318 and 319, and the provisions of sections 277 and 278, (substituting the word trial in place of the word grand,) and of section 320, (substituting the word justice in place of the word court,) are applicable thereto.

§ 326. When drawn in a proceeding before any other judicial officer, it must be drawn by the county clerk, in the manner provided in section 268: and the provisions of sections 277 and 278, (substituting the word trial in place of the word grand,) and of section 320,

(substituting the word judge in place of the word court,) are applicable thereto.

ARTICLE X.

MANNER OF RETURNING A SPECIAL TRIAL JURY.

SECTION 327. Cases in which special jury may be had.

328. Five days notice of application.

329. Manner of drawing special jury.

330. When clerk is interested, special jury, how drawn.
331. Manner of summoning special jury.

332. To be formed in same manner as other juries.

§327. A special jury may be ordered, on motion, by the supreme court, the superior court or court of common pleas of the city of New-York, or a county, city or surrogate's court, for the trial of a question of fact in a civil action or in a special proceeding of a civil nature, when the importance or intricacy of the case requires it, or a fair and impartial trial cannot otherwise be had.

§ 328. The party obtaining the order must give notice of at least five days, of the time when he will attend before the county clerk, for the purpose of selecting the names of persons to form the jury.

§ 329. At the time appointed, the county clerk must attend at his office, with the list of trial jurors of the county, and publicly select the persons to form the jury in the following manner:

1. He must select from the trial jury list, the names of forty-eight persons, indifferent between the parties, and in his judgment best qualified to try the question:

2. The parties or their attorneys, must then, alter

nately, commencing with the party who obtained the order, strike out one of the names of the persons selected, until each party shall have stricken out twelve

names:

3. If either party fail to attend, or neglect to strike out twelve names, as provided in the last subdivision, the clerk must do so for him:

4. The clerk must thereupon deliver to the sheriff, a panel of the twenty-four persons not stricken out, and must certify that they are the persons selected to form the special jury.

§ 330. If, upon the motion for a special jury, it appear that the clerk is a party to, or interested in the action or proceeding, or is related to either of the parties thereto, by consanguinity or affinity within the third degree, or for any other cause is not impartial between the parties, the court must appoint two impartial persons to select the jury, who must perform the duties imposed upon the clerk by the last section.

§ 331. The sheriff must summon the persons whose names are contained on the panel delivered to him, as provided in section 271, and make return thereof as provided in section 272.

§ 332. The jury must be formed from the persons summoned and appearing, in the manner prescribed by this code in respect to other jurors; and the court has the same power to fine, excuse or discharge any of them, as in other cases.

CHAPTER II.

REFEREES.

SECTION 333. Definition of a referee.

334. Definition of a reference.

335. Reference, when ordered on agreement of parties.

336. When ordered without agreement.

337. In what courts.

338. To whom ordered.

339. To whom cause cannot be referred, when reference made by the court or judge.

§333. A referee is a person appointed by the court, or a judicial officer,

1. To try an issue of law or of fact in a civil action, and report a judgment thereon:

2. To ascertain any other fact in a civil action or in a special proceeding of a civil nature, when necessary for the information of the court, and report the fact either with or without his opinion thereon:

3. To execute an order or judgment.

See the code, as amend. d at the last session, sec. 270, 271, 272, 273, and the act to facilitate the determination of existing suits, sec. 3, 4, 5, 6.

§ 334. The appointment of a referee, is denominated a reference.

§ 335. Upon the agreement of the parties to a civil action or a proceeding of a civil nature, filed with the clerk or entered upon the minutes, a reference may be ordered,