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What jury may

SEC. 195. After the jury have retired for deliberation, if they desire return for informa- to be informed on any point of law arising in the case, they may require the officer having them in charge to conduct them into court. Upon their being brought into court the instruction required shall be given by the court in the presence of or after notice to the parties or their attorneys.

tion.

When jury may be discharged without giving verdict.

When new trial

discharged.

SEC. 196. Except as provided in sections one hundred and ninety and one hundred and ninety-nine of this title, or in case of some accident or calamity requiring their discharge, the jury shall not be discharged after the cause is submitted to them until they have agreed upon a verdict and given it in open court, unless by the consent of both parties entered in the journal, or unless at the expiration of such period as the court deem proper it satisfactorily appears that there is no probability of an agreement.

SEC. 197. In all cases where a jury are discharged or prevented from may be had if jury giving a verdict by reason of accident or other cause during the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court directs.

Court deemed

open until jury gives verdict or is discharged.

If juror absent when jury return, jury to be discharged.

Manner of giving verdict.

Jury may be

polled, or insufficient verdict cor

rected.

When verdict

SEC. 198. While the jury are absent the court may adjourn from time to time, in respect to other business, but it is nevertheless to be deemed for open every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged. A final adjournment of the court discharges the jury.

SEC. 199. When the jury have agreed upon their verdict they shall be conducted into court by the officer having them in charge. Their names shall then be called, and if all do not appear the rest shall be discharged without giving a verdict.

SEC. 200. If the jury appear, they shall be asked by the court or the clerk whether they have agreed upon their verdict; and if the foreman answer in the affirmative, he shall, on being required, declare the same.

SEC. 201. When a verdict is given and before it is filed, the jury may be polled on the request of either party, for which purpose each shall be asked whether it be his verdict; if any juror answer in the negative, the jury shall be sent out for further deliberation. If the verdict be informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may again be sent out.

SEC. 202. When the verdict is given, and is such as the court may complete and jury receive, and if no juror disagree or the jury be not again sent out, the discharged, verdict clerk shall file the verdict. The verdict is then complete, and the jury to be in writing and entered on the shall be discharged from the case. The verdict shall be in writing, and under the direction of the court shall be substantially entered in the journal as of the day's proceedings on which it was given.

journal.

CHAPTER EIGHTEEN.

OF THE VERDICT.

Definition of ver

cial.

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SEC. 203. The verdict of a jury is either general or special. A gendict general or spe- eral verdict is that by which the jury 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, leaving the judgment to the court.

In actions for the

SEC. 204. In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or the defend- recovery of specific personal property. ant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof, and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property.

When jury may

SEC. 205. In every action for the recovery of money only or specific real property, the jury, in their discretion, may render a general or give general or special verdict. In all other cases the court may direct the jury to find special verdict. a special verdict upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing. The special verdict or finding shall be filed with the clerk and entered in the journal, as provided in chapter seventeen.

SEC. 206. When a special finding of facts shall be inconsistent with Special verdict to the general verdict, the former shall control the latter, and the court control general. shall give judgment accordingly.

SEC. 207. When a verdict is found for the plaintiff in an action for When counterthe recovery of money, or for the defendant when a counterclaim for claim pleaded in the recovery of money is established beyond the amount of the plain- the answer. tiff's claim as established, the jury shall also assess the amount of recovery; they may also, under the direction of the court, assess the amount of the recovery when the court gives judgment for the plaintiff on the

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Trial by jury,

SEC. 208. Trial by jury may be waived by the several parties to an issue of fact, in actions on contract, and with the assent of the court how waived. in other actions, in the manner following:

First. By failing to appear at the trial;

Second. By written consent, in person or by attorney, filed with the

clerk;

Decisions of the

Third. By oral consent in open court, entered in the minutes. SEC. 209. Upon the trial of an issue of fact by the court, its decision shall be given in writing and filed with the clerk during the term or court; how made within twenty days thereafter. The decision shall state the facts found and when filed. and the conclusion of law separately, without argument or reason therefor. Such decision shall be entered in the journal and judgment entered thereon accordingly. The court may deliver any argument or reason in support of such decision, either orally or in writing, separate from the decision, and file the same with the clerk.

Order of proceedings and effect

SEC. 210. The order of proceedings on a trial by the court shall be the same as provided in trials by jury. The finding of the court upon of findings. the fact shall be deemed a verdict, and may be set aside in the same manner and for the same reasons, as far as applicable, and a new trial granted.

Referee may try

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SEC. 211. All or any of the issues in the action, whether of fact or issues upon con- law, or both, may be referred to a referee or referees upon the written consent of the parties.

sent.

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When reference

SEC. 212. When the parties do not consent in an action at issue and may be ordered by to be tried by the court without a jury, the court may, upon the application of either, or of its own motion, direct a reference in the following cases:

the court.

Number of ref

First. When the trial of an issue of fact shall require the examination of a long account on either side, in which case the referees may be directed to hear and decide the whole issue or to report upon any specific question of fact involved therein; or,

Second. When the taking of an account shall be necessary for the information of the court, before judgment upon an issue of law, or for carrying a judgment or order into effect; or,

Third. When a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action; or,

Fourth. When it is necessary for the information of the court in a special proceeding.

SEC. 213. A reference may be ordered to any person or persons, not erees, and how exceeding three, agreed upon by the parties. If the parties do not agree, the court or judge may appoint one or more, not exceeding three.

chosen.

When chosen by

SEC. 214. When the appointment of referees is made by the court or judge, each referee shall be

First. Qualified as a juror as provided by statute;

Second. Competent as a juror between the parties: Provided, That the court, qualifi- in a reference to take and report testimony only, the same may be made to any competent disinterested person, regardless of the foregoing qualifications.

cations of.

Right and mode of challenge to referees when chosen by the court.

court.

SEC. 215. When the referees are chosen by the court each party shall have the same right of challenge as to such referees, to be made and determined in the same manner and with like effect as in the formation of juries, except that neither party shall be entitled to a peremptory challenge.

Proceedings SEC. 216. Subject to the limitations and directions prescribed in the same as in trial by order of reference, the trial by referee shall be conducted in the same manner as a trial by the court. They shall have the same power to grant adjournments, administer oaths, to preserve order, and to punish all violations thereof upon such trial, and to compel the attendance of witnesses and to punish them for nonattendance or refusal to be sworn or testify, as is possessed by the court.

What report to SEC. 217. The report of the referee shall state the facts found, and contain; evidence when the order of reference includes an issue of law it shall state the to accompany it. conclusions of law separately from the facts. The referees shall file with their report the evidence received upon the trial. If evidence offered by either party shall not be admitted on the trial, and the party offering the same except to the decision rejecting such evidence at the

time, the exception shall be noted by the referees, and they shall take and receive such testimony and file it with the report. Whatever judgment the court may give upon the report, it shall, when it appears that such evidence was frivolous or inadmissible, require the party at whose instance it was taken and reported to pay all costs and disbursements thereby incurred.

Motion to set

SEC. 218. The report shall be filed with the clerk. If it be filed in term time, either party may, within such time as may be prescribed aside report or for judgment thereon. by the rules of the court, or by special order, move to set the same. aside or for judgment thereon, or such order or proceedings as the nature of the case may require. If the report be filed in vacation, the like proceedings may be had at the next term following.

SEC. 219. The court may affirm or set aside the report either in whole or in part. If it affirm the report, it shall give judgment accordingly. If the report be set aside either in whole or in part, the court may make another order of reference as to all or so much of the report as is set aside to the original referees or others, or it may find the facts and determine the law itself and give judgment accordingly. Upon a motion to set aside a report, the conclusions thereof shall be deemed and considered as the verdict of a jury.

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SEC. 220. An exception is an objection taken at the trial to a deci

Proceedings

thereon.

Definition of ex

sion upon a matter of law, whether such trial be by jury or court, ception; must be and whether the decision be made during the formation of a jury, or material.

in the admission of evidence, or in the charge to the jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decision. But no exception shall be regarded on a motion for a new trial, or on an appeal, unless the exception be material and affect the substantial rights of the parties.

Exceptions, how

SEC. 221. The point of the exception shall be particularly stated, and may be delivered, in writing, to the judge or entered in his minutes, stated and settled. and at the time or afterwards be corrected until made conformable to the truth.

SEC. 222. No particular form of exception shall be required. The No particular objection shall be stated with so much of the evidence or other matter form required. as is necessary to explain it, but no more.

SEC. 223. The statement of the exception, when settled and allowed, Exceptions to be shall be signed by the judge and filed with the clerk, and thereafter it signed by judge. shall be deemed and taken to be a part of the record of the cause. Νο -when need exception need be taken or allowed to any decision upon a matter of not be taken. law when the same is entered in the journal or made wholly upon matters in writing and on file in the court.

What deemed

SEC. 224. The verdict of the jury, any order or decision, partially or finally determining the rights of the parties, or any of them, or excepted to. affecting the pleadings, or granting or refusing a continuance, or granting or refusing a new trial, or admitting or rejecting the evidence, provided objection be made to its admission or rejection at the time of its offer, or made upon ex parte application or in the absence of a party, are deemed excepted to without the exception being taken or stated, or entered in the journal.

Definition of new trial.

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SEC. 225. A new trial is a reexamination of an issue of fact in the same court after a trial and decision or verdict by a court or jury. New trial, for SEC. 226. The former verdict or other decision may be set aside and what causes a new trial granted, on the motion of the party aggrieved, for any of granted. the following causes materially affecting the substantial rights of such party:

Motion for, when

mined.

First. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion by which such party was prevented from having a fair trial;

Second. Misconduct of the jury or prevailing party;

Third. Accident or surprise which ordinary prudence could not have guarded against;

Fourth. Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial;

Fifth. Excessive damages, appearing to have been given under the influence of passion or prejudice;

Sixth. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law;

Seventh. Error in law occurring at the trial and excepted to by the party making the application.

SEC. 227. A motion for a new trial, with the affidavits, if any, in filed and deter- support thereof, shall, except as hereinafter provided, be filed within three days after giving the verdict or other decision sought to be set aside; but the court may, upon satisfactory showing, extend the time for filing such affidavits. When the adverse party is entitled to oppose the motion by counter affidavits, he shall file the same within three days after the filing of the motion. A motion shall be heard and determined during the term unless the court continue the same for advisement or want of time to hear it.

Upon trial by the court and decision

in vacation.

SEC. 228. Upon a trial by the court, when the decision is given in vacation, a motion for a new trial shall be filed within twenty days from the time of filing such decision, except as hereinbefore provided. Motion must SEC. 229. In all cases of motion for a new trial the grounds thereof state grounds shall be plainly specified, and no cause of new trial not so stated shall thereof; when sup- be considered or regarded by the court. When the motion is made for ported by affidavit. a cause mentioned in subdivisions one, two, three, or four of section two hundred and twenty-six, it shall be upon affidavits setting forth the facts upon which such motion is based, unless they appear of record in the cause.

When counter

SEC. 230. If the motion be supported by affidavits, counter affidavits affidavits allowed. may be offered by the adverse party; and if the cause be newly discovered evidence, the affidavits of any witness or witnesses showing what their testimony will be shall be produced or good reason shown for their nonproduction; and in the consideration of any motion for a new trial reference may be had to any proceedings in the case prior to the verdict or other decision sought to be set aside.

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