TITLE 5. Id.; by whom fees specified in this title, without the previous payment or tender of his fee therefor. [See 2 R. S., 650, § 6 (2 Edm., 670); and § 3281.](*) § 3329. In an action before a justice of the peace, if any services to be paid are rendered for a party, and he neglects to pay the fees allowed therefor by law, the other party may pay those fees, and the amount thereof must be taxed as part of his costs, if he recovers costs. Certain special [New.] § 3330. The allowance of a fee, by this title, does not apply to a excepted case, where special provision is otherwise made by statute for com provisions from this title. Provision as to pensation for a particular service. [New.] § 3331. Where an officer has, when his* title takes effect, comchange in menced the performance of a service, for which a fee is allowed by the statutes heretofore in force, he is entitled to the fee so allowed, for the completion of that service, and he is not entitled to the fee for the same, or a corresponding service, allowed by this title. [New.] This title applies to § 3332. Except as otherwise expressly prescribed therein, this civil cases title does not apply to a service rendered in a criminal action or special proceeding, in a court or before an officer. only. [This leaves the fees of justices, constables, etc., in criminal cases, to be regulated by the former statutes, which for that purpose are not affected by this Code, or the general repealing act of 1880.] 156 *Error for "this." (a) See page 353. PART II. PROVISIONS OF THE CODE OF CIVIL PRO- PRELIMINARY NOTE.-This Part contains all the provisions of the Code of Civil Procedure, which relate to proceedings before justices of the peace, either because they are general by their terms, and therefore include justices' courts, with others; or because, being primarily applicable only to proceedings in courts of record, they are applied to proceedings in justices' courts by express references thereto, in provisions relating to the latter tribunals. The application to particular courts, etc., of the provisions of the Code of Civil Procedure is regulated by § 3347, which will be found in this Part; but some explanations may be required, in order fully to understand the effect of that section. In the first place, attention is called to the qualification at the beginning of § 3347, whereby it is provided, that where a particular provision "expressly designates the courts, persons, or proceedings, affected thereby," it is to be deemed excluded from the general directions subsequently given. By the operation of this qualification, many sections are applicable to courts not of record, and therefore included in this Part, although they are found in chapters, which are, by the provisions of § 3347, confined to proceedings in courts of record; for instance §1176 and § 1179, each of which is, by its terms, applicable to "a court of record or not of record." Secondly, it will be seen, that no special MANUAL. directions are given in § 3347, with respect to the application to particular courts, of chapters 1, 2, 3, and 4; chapter 9; article 3 of title 1 and title 2 of chapter 11; chapter 12; chapters 14, 15, 16, 17, 18, 19, 20, and 22, besides certain divisions of, or particular sections contained in, other chapters, the remainder of which is made applicable only to courts of record. Consequently the application of the provisions contained in those chapters, or parts of chapters, is regulated by the principles which govern the application of any other statute. They bind all persons who, and all courts which, can be affected thereby; so that the application to justices' courts of each of those provisions, in the absence of special directions, contained in the same or some other provision, will be regulated by its subject-matter. If it relates to causes of action or proceedings, of which a justice of the peace has no jurisdiction, or gives directions which cannot be followed in a justices' court (as, for instance, where it requires action by the sheriff or the clerk), it is evidently not applicable. So also where, without being itself inapplicable for these reasons, it is connected by close interdependence with others which are inapplicable; as for instance, § 1902, giving a cause of action for causing death by negligence, between which and § 1904 there is such an inseparable connection, that the former section is not deemed applicable to justices' courts. With these principles present to the mind, it is believed that the reasons for including in or rejecting from this Part, particular sections of the Code of Civil Procedure, as applicable or not applicable, by their terms or by § 3347, to proceedings before justices of the peace, will be made apparent with little difficulty. The other class, consisting of provisions, which, not being primarily so applicable, are applied by express references, calls for no special explanation. Those sections are distinguished in this Part, by asterisks appended to their sectional numbers, and in a foot note to each is a reference to the section whereby it is so applied. In applying them, the qualifying clause of § 3134, on page 127, ante, must not be overlooked. 158 CHAPTER I. GENERAL PROVISIONS RELATING TO COURTS, AND PART II. TITLE I. The courts of the State; their general powers and attributes, and general regulations pertaining to the exercise thereof. ARTICLE FIRST. ENUMERATION AND CLASSIFICATION. §3. [Amended, 1877.] Each of the following courts of the State Courts not is a court not of record: 1. Courts of justices of the peace in each town, and in certain cities and villages. 2. Courts of special sessions of the peace in each town, and in certain cities and villages. 3. The district courts in the city of New-York. 4. The police courts in certain cities and villages. 5. The justices' court of the city of Troy. 6. The municipal court of the city of Rochester. [Co. Proc., part of § 9; L. 1834, ch. 271, and acts amending the same (3 R. S., 5th ed., 417); L. 1872, ch. 129, tit. 2, § 11; and L. 1876, ch. 196.] of record. provision jurisdiction, etc. 34. [Amended, 1877.] Each of those courts shall continue to General exercise the jurisdiction and powers now vested in it by law, accord- aris ing to the course and practice of the court, except as otherwise prescribed in this act. [From Co. Proc., § 10, and part of § 469. The object of this provision is to preserve the existing practice, etc., wherever this act is not applicable.] JUSTICE'S The sittings to be public. ARTICLE SECOND. GENERAL POWERS AND ATTRIBUTES OF THE COURTS. § 5. [Amended, 1879.] The sittings of every court within this of courts State shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, on account of adultery, seduction, abortion, rape, assault with intent to commit rape, criminal conversation, and bastardy, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses and officers of the Courts not to sit on except in special cases. court. [Taken from 2 R. S. 274, Part 3, ch. 3, tit. 1, § 1 (3 R. S., 5th ed., 465; 2 Edm., 284), and modified by L. 1879, ch. 210.] § 6. A court shall not be opened, or transact any business on Sunday Sunday, except to receive a verdict or discharge a jury. An adjournment of a court on Saturday, unless made after a cause has been committed to a jury, must be to some other day than Sunday. But this section does not prevent the exercise of the jurisdiction of a magistrate, where it is necessary to preserve the peace, or, in a criminal case, to arrest, commit or discharge a person charged with an offence. No imprison [Id., § 7, adding the words, "commit or discharge," in the last line. See, also, Part III, page 382.] § 16. Except in a case where it is otherwise specially prescribed by ment for law, a person shall not be arrested or imprisoned for disobedience to money due on contract. Writs, etc., in the name of the people, and in English; abbrevia tions. a judgment or order, requiring the payment of money due upon a contract, express or implied, or as damages for non-performance of a contract. [Sec. 1 of the non-imprisonment act, L. 1831, ch. 300 (3 R. S., 5th ed., 126; 4 Edm., 465), amended so as to adapt it to the modern practice and procedure.] § 22. Except where it is otherwise specially prescribed by law, a writ or other process must be in the name of the people of the State, and each writ, process, record, pleading or other proceeding in a court, or before an officer, must be in the English language, and, unless it is oral, made out on paper or parchment, in a fair legible character, in words at length, and not abbreviated. But the proper |