1848. In suits on pro must be stated; SECT. 121. In actions upon probate bonds, the plaintiff, either in his declaration or in his replication, must aver and set forth for bate bonds, parwhose special use and benefit the action is prosecuted, and how ties in interest such persons are interested in the same, and how the act or neglect of others not barred the defendant has injured their rights or affected their interests, and the judgment which shall be rendered in such case shall not, in any future proceedings by scire facias or otherwise, have the effect to bar or conclude the rights of other persons who may be interested in the probate bond.* CHAPTER VIII. OF AMENDMENT. SECT. 122. The plaintiff may amend any defect, mistake, or in- When plaintiff formality in the writ or declaration, without cost, within the three may amend. first days of the term of the court to which it is returnable, and at any time afterwards on the payment of cost at the discretion of the court; but such amendment shall not change the form or ground of the action, and the defendant shall have reasonable time to answer the same.t may amend SECT. 123. The parties respectively shall have liberty to amend When parties any defect, mistake, or informality in the pleadings or other parts of pleadings, or the records or proceedings. When either party shall supppose that in plead anew. any part of the pleadings he has missed the ground of his plea, and that he can plead a different plea that will save him in his cause, he may change such plea, replication, or rejoinder, as the case may be, and plead anew, and the other party shall have reasonable time to answer the same; and in all cases when a party amends or alters any part ment. of the pleadings or pleads anew, if it shall occasion any delay in the When cost to be trial, or inconvenience to the other party, he shall be liable to pay taxed on amendcost at the discretion of the court. And all courts shall have power to restrain the amendment and alteration of pleas so far as may be necessary to compel the parties to join issue in a reasonable time for trial.t *No recovery for nominal damages, when. Taylor v. Mygatt, 26 C. R. 184. Amendments, when allowed. Arnold v. Sergeant, 1 Root, 86; Ely v. Stow, 1 Root, 115; Dunham v. Braiman, 1 Root, 551; Livingston v. Abel, 2 Root, 57; Nettleton v. Redfield, 2 Root, 119; Hobby v. Mead, 1 Day, 206; Michaelson v. Denison, 8 Day, 294; Smith. Barker, 3 Day, 315; Fuller v. Hampton, 5 C. R. 416; New Haven Bank v. Miles, 5 C. R. 587; Merriam v. Langdon, 10 C. R. 460; Husted v. Greenwich, 11 C. R. 383; Johnson v. Huntington, 13 C. R. 47; Peck v. Bacon, 18 C. R. 377; Baldwin v. Walker, 21 C. R. 168; Windham v. Litchfield, 22 C. R. 226; Hoyt v. Smith, 27 C. R. 468; Beers. Woodruff & Beach, 30 C. R. 308. When not allowed. Ross v. Bates, 2 Root 198; Freeman v. Beadle, 2 Root, 492; Drake . Watson, 4 Day, 37; Peck v. Sill, 8 C. R. 157; Maritime Bank v. Rand, 24 C. R. 9. At what stage of trial amendment may be made. Hobby v. Mead, 1 Day, 206; Michaelsone. Denison, 3 Day, 294; Smith v. Barker, 3 Day, 312; Betts v. Hoyt, 13 C. R. 469; Peck v. Bacon, 18 C. R. 377. An allowance or disallowance of amendment, no ground of error. Merriam v. Lang- Costs, when paid on amendments. Huntington v. Sheldon, 3 Day, 497; Hoyt v. Amendments of record when allowed. Phelps v. Sanford, Kirby, 843; Kisham v. When not allowed. Foot v. Cady, 1 Root, 173; Riggs v. Woodruff, 2 Root, 35; Judson. Blanchard, 3 C. R. 579. When return of sheriff is not amendable. Wilkie v. Hall, 15 C. R. 32. justice, plaintiff 1847. SECT. 124. Whenever in any civil action an appeal shall have been In appeal from duly allowed from the judgment of a justice of the peace to a supemay amend by rior court, and shall have been legally entered in the docket of said raising damages. court, the plaintiff may amend his writ by raising the damages to any sum not exceeding seventy dollars. 1855. counts when allowed. SECT. 125. In actions of trespass and trespass on the case, the Amendment by plaintiff may, at any time, amend his writ or declaration, by the addiadding new tion of new counts, in either trespass or case, and in actions of assumpsit, debt or covenant, by the addition of new counts in either assumpsit, debt or covenant, when such new counts are for the same cause of action as either of the original counts in the declaration, and when such amendment is made within the first three days of the court, to which the writ is returnable, it may be made without cost, and afterwards, on payment of cost at the discretion of the court, and a reasonable time shall be given to the defendant to an- . swer such new counts. CHAPTER IX. Of trials of matters of fact. 1855. 1865. Docket to be cases, and how kept of jury entered. OF THE JURY. SECT. 126. All actions in the superior court in which an issue shall be joined on a matter of fact, and all appeals from probate, in which such issue shall be joined on the trial of which the validity of the last will and testament of any deceased person shall be brought in question, shall be tried by a jury of twelve men, qualified, impanneled and sworn according to law, except as hereinafter provided. SECT. 127. In the superior court, in each county, a separate docket shall be kept of jury cases; and whenever an issue in fact shall have been joined by the parties, either party may have such cases should be issue tried to the jury, upon filing with the clerk of such court, at the time such issue is joined, an affidavit, subscribed by such party or his attorney, stating that the allegations, affirmed or denied by such issue, are true, and thereupon such clerk shall place such action in the jury docket, in its proper alphabetical order, and causes may be entered in the jury docket, at any time, by consent of parties. In causes proper to be tried by a jury, but not entered on the jury docket, and not otherwise disposed of, the issue shall be tried by the 1855. Auditors may be appointed by su. perior when. court. SECT. 128. Auditors may be appointed in the superior court, in any action founded on contract, and which action shall not have been court, entered on the jury docket as provided in the next preceding section; and such auditors shall have the same power and proceed in the same manner as auditors in an action of account. Jurors how cho sen. SECT. 129. The civil authority, selectmen, constables and grand jurors in the several towns, shall, some time in the month of January annually, meet and choose by ballot, to serve as jurors in the superior court in the county to which such towns belong, such number of their able and judicious electors as is prescribed by law. There shall be a box provided in the several towns at the cost of the town, with a lock thereon, and lodged in the hands of the town clerk; and when the jurors are chosen as aforesaid, the town clerk shall write the name of each elector so chosen, on a piece of paper by itself, and put the several names so written in the said box, and keep the same locked in his hands, that the said names may be drawn as is hereafter provided.* Firemen and exempt jurors, &c. SECT. 130. All persons who shall be members of any fire com- 1852. 1862. pany, authorized by and organized under the laws of this state, and others all persons who shall be engineers or wardens of any fire department, from serving as in any of the towns of this state, shall, during the time of such service, be exempt from serving as jurors in any of the courts of this state, and every officer, musician and private who shall perform duty in the active militia, in accordance with the provisions of an act for forming and conducting the military force, or who may be prevented from doing such duty by sickness, bodily infirmity or other reasonable cause, shall, if he desire it, be exempt while liable to such duty from serving as a juror. summoned. SECT. 131. At some convenient time before the sitting of the su- How jurors are perior court, the clerk of the same shall summon eighteen jurors to to be drawn and attend such court, and shall issue warrants directed to either of the constables of the several towns, or of some of them, in the county in which the court is to be held, to summon and warn so many able and judicious electors of the town as their warrant directs, to attend and serve as jurors at such court, and such constable shall repair to the town clerk and in his presence, or in case of his absence, in the presence of one of the selectmen of such town, or of a justice of the peace, draw out of the box aforesaid the number his warrant directs him to summon, without seeing the names he draws before he draws them, and shall then summon for jurors the persons whose names he has so drawn.t SECT. 132. If any or all whose names are so drawn shall be Return of warat the time dead, others in his or their room, shall be drawn and rant. summoned as aforesaid. And the constable shall make timely return of his warrant to the clerk who issued the same with an endorsement certifying whom he has summoned for the purpose afore said, on penalty of forfeiting to the treasury of the county a sum not Penalty for neg exceeding five dollars, at the discretion of the court, unless such lect. constable shall seasonably make his excuse to the acceptance of said court.1 how summoned. SECT. 133. If any of the jurors summoned as aforesaid do not Additional jurors appear, or shall for any cause be excused from attending court, the court may, at its discrétion, from time to time, direct the clerk to issue a warrant or warrants to summon, in manner as aforesaid, additional jurors so as to prevent, as far as may be consistent with the convenient dispatch of business, the necessity of filling up the panel of jurors with the names of persons not designated and summoned as aforesaid. 401. Under former statute juror must have been freeholder. State v. Babcock, 1 C. R. Who an elector, and exception to juror as not being elector, when to be taken. Sellecke. Sugar Hollow Turnpike Co., 13 C. R. 453. The clerk of the court may be a party to a suit to be tried by the jury, Hart v. Tallmadge, 2 Day, 381. When a mistake of the constable will not disqualify juror. Colt . Evés, 12 Č. R. 243. As to Return commencing "whereas " not exceptionable. Maples v. Park, 17 C. R. 333. What relationship disqualifies juror. Hartford Bank v. Hart, 3 Day, 491. what opinion a juror may have formed without being disqualified, see State v. Potter, 18 C. R. 166. A juror who is a considerable land owner and tax payer in a town which is a party, is disqualified. Baily v. Town of Trumbull, 31 C. R. 581. Jurors how de signated. 1848. Penalty for nonattendance. Talesmen. 1853. Judge of supe SECT. 134. The clerk of said court, in impanneling the jury for the trial of each cause, shall, when more than twelve jurors are attending as aforesaid, designate by lot the names of those who shall compose the panel of jurors; but on the trial of every civil action, each party shall have the right to challenge two jurors peremptorily, and without alleging or showing any cause therefor.* SECT. 135. If any juror chosen, drawn and summoned as aforesaid, shall make default of appearance according to the direction of the warrant, he shall forfeit to the treasury of the county wherein he dwells the sum of two dollars, unless the court on hearing the excuse made in his behalf, shall judge it sufficient. cause, SECT. 136. If a sufficient number of jurors summoned as aforesaid do not appear, or if by reason of challenges or some other there shall not be a sufficient number of jurors to make up the panel, the court may order the sheriff to return such number of able and judicious electors of the county as may be necessary for that purpose, and when the sheriff is interested or related to either of the parties, the court may direct a constable, or such officer as it shall appoint, to make such return, which jurors being so returned, shall perform the duty required of them, on the same penalty as is inflicted on those who make default of appearance, and when the jury are impanneled they shall take the oath prescribed by law. SECT. 137. Any judge of the superior court, if in his judgment the business of said court shall require it, may at any term of the rior court may, court holden by him, order the clerk of such court to summon any number of jurors additional number of jurors not exceeding twelve, to attend and to be summon- serve as jurors at such court, in the same manner as is provided in this act. order additional ed. CHAPTER X. Subpoena for witnesses. Fees to be tendered. Penalty. OF EVIDENCE. å SECT. 138. The parties shall have process of subpoena or sum mons signed by the clerk of the court, à justice of the peace, or commissioner of the superior court, to be served by an officer or indifferent person, to bring their witnesses into court, and if any person upon whom a subpoena shall be served to appear and testify in a cause pending before any court, and to whom one day's attendance and fees for traveling to court have been tendered, shall neglect or refuse to appear and testify, without reasonable excuse, he shall forfeit five dollars and pay all damage to the party aggrieved, to be recovered by a proper action in his name, and the court on due proof of the service of the subpoena and the tender of the fees as *This section gives peremptory challange in Forcible Entry and Detainer. Quinebaug Bank v. Tarbox, 20 C. R. 510. Also in Summary Process. Miner v. Brown, 20 C. R. 519. Also in reassessment of damages. Pettis v. Town of Pomfret, 28 C. R. 566. Relationship of a juror to a resident or tax payer of a town on highway petition, not a disqualification. Same. Jury may be empannelled, and render verdict outside of court room, when. Litchfield Bank v. Church, 29 C. R. 137. aforesaid, may issue a capias directed to some proper officer, to ar- Capias. Form of subpœ By authority of the state of Connecticut, you are hereby com- na manded to appear before the on the Tuesday of court to be holden at F. to testify what you know in a certain action now depending in the said court, between E. F. of H. plaintiff, and G. H. of M. defendant, in an action of Hereof fail not, under the penalty of the law in that case provided. be taken., To any proper officer or indifferent person to serve and return. Dated at H. &c. J. K. Justice of the Peace. SECT. 140. When any witness in a civil cause lives out of the state, or more than twenty miles from the place of trial, is going to When and how sea, or out of the state, or by age, sickness or bodily infirmity, is depositions may unable to travel to court, or is confined in jail on legal process, deposition may be taken by any judge of the superior court, or of any court of probate, or by a justice of the peace, or a notary public, or commissioner of the superior court; but reasonable notice shall be given to the adverse party or his known agent or attor ney, or left at his usual place of abode, to be present at the time of taking such deposition; and depositions may be taken in any other state or country by a notary public, commissioner appointed by the governor of this state, or any magistrate having power to administer oaths; and the witness shall be cautioned to speak the whole truth, shall be carefully examined, shall subscribe his deposition and make oath to it before such authority, who shall attest the same and certify that the adverse party or his agent was present, (if so,) or that he was notified, and shall also certify the reason of taking such deposition, shall seal it up, direct it to the court where it is to be used, and deliver it if desired, to the party at whose request it was taken.* deposition. SECT. 141. The party, his attorney, or any person interested, Persons in intershall not write, draw up, or dictate any deposition, and every depo- est may not write sition so drawn up, or that shall be returned to the court unsealed, by any other hand than that of the authority who took it, or the seal of which shall be broken, shall be rejected by the court.t SECT. 142. Depositions to be read on the trial of any civil action, 1861. may be taken in any foreign state or country, without the limits of Depositions, how the United States, pursuant to the provisions of law, before the fol- foreign counlowing described officers of the United States, viz: foreign ministers, secretaries of legation, and consuls and vice consuls; and a certificate *Notice to whom given. Clap v. Lockwood, Kirby, 100; Fowler v. Norton, 2 Root, 25. May be proved by parol. Lawrence v. Phelps, 2 Root, 334. Notice, when reasonable. Daggett v. Tallman, 8 C. R. 168; Sharp v. Lockwood, 12 C. R. 155. When suffcient. Lyon . Ely, 24 C. R. 507. Masters v. Town of Warren, 27 C. R. 293. Certificate of magistrate, and direction of deposition, how made. Stocking v. Sage, 1 C. R. 519 Thompson v. Stewart, 3 C. R. 171; Reading v. Weston, 7 C. R. 143: Scripture . Newcomb, 16 C. R. 588. t. Not necessary for a magistrate to certify that deponent signed deposition. Lewis v. Various points relating to depositions. Nichols v. Hillyer, Kirby, 219: Barker v. Agent of party may not draw up deposition. Smith v. Huntington, 1 Root, 226; to be taken in tries. |