Court may or der money to be

$ 349. A court sitting in a county in which, or in any 1851. county adjoining which, there is a bank, or a branch of a bank, created by the laws of this state, transacting regul- paldinio banko lar banking business, may order money paid into court to be deposited in such bank or branch to the credit of the court, in the action or proceeding in which the money was paid. Money so deposited, shall be paid only upon the check of the clerk of the court, annexed to its certified order for the payment, and in favor of the person to whom the order directs the payment to be made.

§ 350. Money deposited or paid into court in any action, shall shall not be loaned out by the court, unless with the consent of all the parties having an interest in or making claim of parties. to the same.

Such money

not be loaned out ex. cept by consent

Issues are of two kinds: law and fact.

Upon what issues of fact arise.

TITLE IX.

TRIAL AND JUDGMENT.
Chap. 1. Issue.

2. Trial.
3. Judgment.

CHAPTER 1.

Issue. $ 351. Issues arise on the pleadings, where a fact, or conclusion of law, is maintained by one party and controverted by the other. They are of two kinds :

1. Of law.

2. Of fact. $ 352. An issue of fact arises

1. Upon a material allegation in the petition, de. nied by the answer.

2. Upon a set-off or counter-claim presented in the answer, and denied by the reply.

3. Upon material new matter in the answer or reply, which shall be considered as controverted by the opposite party without further pleading.

CHAPTER 2.

Trial.
Art. 1. Trial in general.

2. Trial by jury.
3. Trial by the court.
4. Exceplions.
5. New trial.
6. General provisions.
7. Time of trial.

ARTICLE I.

Trial in general. § 353. A trial is a judicial examination of the issues, whether of law or of fact, in an action.

by

the

unless waived.

the court.

1851. § 334. Issues of law must be tried by the court. Issues Issues of law of fact, arising in actions by ordinary proceedings for the court-those of recovery of money, or of specific real or personal properlact by a jury, ty, shall be tried by a jury, unless a jury trial is waived.

§ 355. All other issues of tact, whether arising in ordinaOther issues by ry or equitable proceedings, shall be tried by the court, sub

ject to its power to order any issue or issues to be tried by a jury.

$ 356. The trial in each action shall be in the order in Cases to be which it stands upon the docket.

357. A motion to postpone a trial on account of the

absence of evidence, can be made only upon affidavit Motion to post. pone trial must showing the materiality of the evidence expected to be ob

upon tained, and that due diligence has been used to obtain it;

and, if it is for an absent witness, the aifidavit must show what facts the alliant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant himselt' believes them to be true. If, thereupon, the adverse party will consent that, on the trial, they shall be taken as true, the trial shall not be postponed for that cause.

der docketed.

be made afhdavit.

ARTICLE II.

Trials by jury.
SUBDIVISION 1. Formation of the jury.

2. Conduct of the trial.
3. Verdict.

SUBDIVISION I.

Formalion of the jury. § 358. The general mode of summoning, impanneling, alode of im. challenging, and swearing the jury, is not changed by this papveling jurs code. not changed.

SUBDIVISION II.

Conduct of the trial. $ 359. When the jury has been sworn, the trial shall Mode of con proceed in the following order, unless the court for special decting a trial.

reasons otherwise directs :

1. The plaintiff must briefly state his claim, and the evidence by which he expects to sustain it.

2. The defendant must then briefly state his defense, and the evidence he expects to offer in support of it.

3. The party on whom rests the burthen of proof in the whole action, must first produce his evidence; the adverse party will then produce his evidence.

4. The parties will then be confined to rebutting evidence, unless the court, for good reasons in furtherance of justice, permits them to offer evidence in their original case.

5. When the evidence is concluded, either party may

a

curred.

court after cause

them.

request instructions to the jury on points of law, which 1851.
shall be given or refused by the court; which instruc-
tions shall be reduced to writing, if either party re-
quire it.

6. The parties may then submit or ague the case to
the jury. In the argument, the party having the bur-
then of proof shall have the conclusion, and the ad-
verse party the opening. If there is more than one
speech on either side, or if several defendants having
separate defenses, appear by different counsel, the

court shall arrange their relative order. § 360. Whenever, in the opinion of the court, it is proper Jury mas have for the jury to have a view of real property which is the property in liti

real subject of litigation, or of the place in which any material sation or

place where a fact occurred, it may order them to be conducted in a body material fact ocunder the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial.

§ 361. When the case is finally submitted to the jury, Duty of jury & they may decide in court or retire for deliberation. If they is submitted to retire, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court, subject to the discretion of the court to permit them to separate temporarily at night, and at their meals. The officer having them under his charge, shall not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court; and he shall not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.

§ 362. If the jury are permitted to separate either during the trial or after the case is submitted to them, they may be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by, any other per- duty. son, on any subject of the trial; and, during the trial, that it iş their duty not to form or express an opinion thereon, until the cause is finally submitted to them.

$363. After the jury have retired for deliberation, if there If jury disa. is a disagreement between them as to any part of the tes- fact they may be timony, or if they desire to be informed as to any point of brought law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of or after notice to the parties or their counsel. § 361. The jury may be discharged by the court on ac

a jury count of the sickness of a juror, or other accident or ca

may be discharg lamity requiring their discharge, or by consent of both parties, or after they bave been kept together until it satisfactorily appcars that there is no probability of their agreeing.

If jury are permitted to separate, court must admonish them as to their

gree

into

Causes for which

may be tried at
same or
tenni.

be

Jury may polied.

1851. $365. In all cases where the jury are discharged during Ir jury are dis- the trial or after the cause is submitted to them, it may be charged,

cause tried again, immediately or at a future time, as the court next may direct.

§ 366. When the jury have agreed upon their verdict, Manner of dea they must be conducted into court, their names called by Livering verdict the clerk, and the verdict rendered by their foreman. When

the verdict is announced, either party may require the jury to be polled, which is done by the clerk or court asking each juror if it is his verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.

9 367. The verdict shall be written, signed by the foreVerdict must

man, and read by the clerk to the jury, and the inquiry be in writing, made, whether it is their verdict. If any juror disagrees,

the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the

foreman.

case.

SUBDIVISION III.

cial.

cretion to find a general or spe. cial verdict.

Verdict. 368. The verdict of a jury is either general or special. The verdict A general verdict is that by which they pronounce, genergenerale oreis per ally, upon all or any of the issues, either in favor of the

.

plaintiff or defendant. A special verdict is that by which the jury find the facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented as that nothing remains to the court but to draw from them conclusions of law.

$369. In all actions, the jury, in their discretion, may Jury have dis. render a general or special verdict, but may be required by

the court, in any case in which they render a general verdict, to find specially upon particular questions of fact to be stated in writing. This special finding is to be recorded with the verdict.

9 370. When the special finding of facts is inconsistent the special fond: with the general verdict, the former controls the latter, and ent with general the court may give judgment accordingly.

§ 371. When, by the verdict, either party is entitled to The jury must recover money of the adverse party, the jury, in their mount of reco: verdict, must assess the amount of recovery.

$ 372. In actions for the recovery of specific personal The value of property, the jury must assess the value of the property, as

also the damages for the taking or detention, whenever, by their verdict, there will be a judgment for the recovery or return of the property.

ing inconsist

verdict, the for mer controls.

ery.

property & dam. age! for deten. tion must be as. sessed,

ARTICLE III.

Trial by the court. $ 373. The trial by jury may be waived by the parties in

may be waived, and

cause suh.

actions arising on contract, and, with the assent of the 1851. court, in other actions, in the following manner:

Trial of jury 1. By failing to appear at the trial.

2. By written consent in person, or by attorney, filed mitted to court. with the clerk.

3. By oral consent in open court entered on the record. $ 374. l'pon trials of questions of fact by the court, it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one of exceptions aro the parties requests it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law.

Court need not state lacts specially, unless

filed.

ARTICLE IV.

must be taken at the time.

No form ne.

How exception to be taken

appear upon the record.

E.cceptions. $ 375. An exception is an objection taken to a decision of Exception. the court upon a matter of law.

§ 376. The party objecting to the decision, must except An exception at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the succeeding term.

$ 377. No particular form of exception is required. The objection must be stated, with so much of the evidence as

cessary in filing

exceptions. is necessary to explain it and no more, and the whole as briefly as possible.

$ 378. Where the decision objected to is entered on the record, and the grounds of objection appear in the entry, where the facts the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts.

379. Where the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception hom nay xD to writing, and present it to the judge for his allowance taiwed from by. and signature. If true, it shall be the duty of the judge to allow and sign it; whereupon, it shall be filed with the pleadings as part of the record, but not spread at large on the order book. If the writing is not true, the judge shall correct it, or suggest the correction to be made, and sign it. If the party excepting is not satisfied with the correction, upon his procuring the signatures of two by-standers attesting the truth of his exception as by him prepared, the same shall be filed as part of the record; but the truth of the exceptions may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the clerk within ten days after the filing of the exception.

Exception must § 380. No exception shall be regarded, unless it is mate. be material, &

prejudicial rial and prejudicial to the substantial rights of the party the rzbits of the excepting.

Where they do not appear

on the record; and

excep.

standers.

to

!