§ 349. A court sitting in a county in which, or in any county adjoining which, there is a bank, or a branch of a bank, created by the laws of this state, transacting regular 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 not be loaned out by the court, unless with the consent of all the parties having an interest in or making claim to the same. 1851. Court may or der money to be paid into bank. Such money shall not be loaned out exof parties. cept by consent CHAP. 1. Issue. 2. Trial. 3. Judgment. TITLE IX. CHAPTER 1. § 351. Issues arise on the pleadings, where a fact, or conclusion of law, is maintained by one party and controThey are of two kinds: verted by the other. 1. Of law. 2. Of fact. §352. An issue of fact arises 1. Upon a material allegation in the petition, denied 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. ART. 1. Trial in general. 2. Trial by jury. 3. Trial by the court. 4. Exceptions. 5. New trial. 6. General provisions. 7. Time of trial. CHAPTER 2. ARTICLE I. Trial in general. Issues are of two kinds: law and fact. Upon what issues of fact arise. § 353. A trial is a judicial examination of the issues, Trial. whether of law or of fact, in an action. 1851. § 354. 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 properfact by a jury, ty, shall be tried by a jury, unless a jury trial is waived. tried by the unless waived. Other issues by the court. § 355. All other issues of fact, whether arising in ordinary or equitable proceedings, shall be tried by the court, subject 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. tried in the or der docketed. Motion to post pone trial must be made upon affidavit. § 357. A motion to postpone a trial on account of the absence of evidence, can be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it; and, if it is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant himself' 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. ARTICLE II. Trials by jury. SUBDIVISION 1. Formation of the jury. 2. Conduct of the trial. 3. Verdict. Mode of am panneling jury not changed. SUBDIVISION I. Formation of the jury. §358. The general mode of summoning, impanneling, challenging, and swearing the jury, is not changed by this code. 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 reasons otherwise directs: ducting a trial. 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 request instructions to the jury on points of law, which 6. The parties may then submit or ague the case to § 360. Whenever, in the opinion of the court, it is proper for the jury to have a view of real property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body under 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. Duty of jury & court after cause them. $361. When the case is finally submitted to the 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. If jury are permitted to separate, court must admonish them as to their §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 is their duty not to form or express an opinion thereon, until the cause is finally submitted to them. If jury disagree as to law or fact they may be court. § 363. After the jury have retired for deliberation, if there is a disagreement between them as to any part of the testimony, 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. § 364. The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing. into Causes for which a jury may be discharg ed. 1851. § 365. In all cases where the jury are discharged during If jury are dis- the trial or after the cause is submitted to them, it may be tried again, immediately or at a future time, as the court may direct. charged, cause may be tried at same or next term. Manner of de livering verdict. Jury may be polled. Verdict must be in writing, and signed by foreman. The verdict may be either general or spe. cial. cretion to find a general or spe. $366. When the jury have agreed upon their verdict, they must be conducted into court, their names called by 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. § 367. The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry 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 case. SUBDIVISION III. Verdict. § 368. The verdict of a jury is either general or special. A general verdict is that by which they pronounce, generally, 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. cial verdict. § 370. When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly. § 371. When, by the verdict, either party is entitled to recover money of the adverse party, the jury, in their verdict, must assess the amount of recovery. § 372. In actions for the recovery of specific personal 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. ARTICLE III. Trial by the court. § 373. The trial by jury may be waived by the parties in actions arising on contract, and, with the assent of the court, in other actions, in the following manner: 1. By failing to appear at the trial. 1851. Trial of jury may be waived, and cause sub 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. Court need not state facts specially, unless filed. § 374. Upon 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 are 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. ARTICLE IV. Exceptions. 375. An exception is an objection taken to a decision of the court upon a matter of law. § 376. The party objecting to the decision, must except 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 is necessary to explain it and no more, and the whole as briefly as possible. Exception. An exception must be taken at the time. No form necessary in filing exceptions. How excep. tion to be taken § 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 to writing, and present it to the judge for his allowance 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. appear upon the record. Where they do not appear on the record; and how an exceptained from by tion may be ob standers. Exception must be material, & prejudicial to § 380. No exception shall be regarded, unless it is material and prejudicial to the substantial rights of the party the rghts of the excepting. party. |