Being, shall, on account of his religious opinions, be adjudged an incompetent witness.* 1848. SECT. 176. No person shall be disqualified as a witness in Parties in inany terest not dissuit or proceeding at law, or in equity, by reason of his interest in qualified as witthe event of the same, as a party or otherwise; or by reason of his nesses. conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credit; and nothing herein contained shall be construed to authorize a party to a criminal proceeding to testify regarding the same.t in civil actions SECT. 177. Any party to any civil action or proceeding, whether 1848. at law or in equity, may compel any adverse party, or any person Adverse parties, for whose immediate and adverse benefit such action or proceeding may be comis instituted, prosecuted or defended, to testify as a witness in his pelled to testify. behalf, in the same manner and subject to the same rules as other witnesses; but no party shall be allowed to compel an answer to a bill or motion for discovery, from an adverse party, and also to compel him to testify. I tested, not SECT. 178. Nothing in the two preceding sections contained, shall Instruments re in any manner affect the law relating to the attestation of the execu- quired to be at tion of last wills and testaments, or of conveyances of real estate, or affected, &c. of any other instrument required by law to be attested. CHAPTER XI. OF TRIAL. SECT. 179. The court shall decide all questions of law arising in Duty of the court. the trial of a cause, and in committing the cause to the jury shall direct them to find accordingly, and shall submit all questions of fact to the jury, with such observations on the evidence, for their information, as it may think proper, without any direction how they shall find the facts. After the cause is committed to the jury, no pleas, arguments, or evidence, shall be received before the verdict is returned into court and recorded. || SECT. 180. In all trials to the jury, either party may request 1855. the court in writing to charge the jury specifically upon any question to charge jury. Request of court * Before the statutes, witness incompetent when. Curtis v. Strong, 4 Day, ŝ1; AtWood . Welton, 7 C. R. 66. + Wife may be witness for husband. Stanton v. Wilson, 3 Day, 57; Merriam v. H. & Adverse party may be compelled to give his deposition. Buckingham v. Barnum, What should be left to jury. Treadwell v. Bulkley, 4 Day, 895; Patten v. Smith, What facts verdicts must find. Kilbourne. Waterous, Kirby, 424; Kegwin v. Camp- 1852. When defendant nonsuit and of law arising upon the trial; and the charge of the court upon questions of law, so presented, shall be in writing; and such charge in writing, with such written request, shall, upon the rendition of the verdict in such cause, be filed and lodged with the clerk. SECT. 181. Whenever, in the trial of any issue or issues in fact, in may move for a any civil action, the plaintiff shall have produced his evidence and rested his cause, the defendant may move for judgment as in case of nonsuit, and the court, before which such trial may be had, may grant such motion, if in the opinion of such court, the plaintiff shall have failed to make out a prima facie case." court grant the motion. Plaintiff may nonsuit. SECT. 182. The plaintiff may at the same term of the court, move to set aside move the court to set aside such nonsuit, by filing a written motion On refusal of the to that effect; and if the court shall refuse to grant such motion, court, may re the plaintiff may revise the decision of the court, by motion in motion in error error, as in other cases; and to enable him so to do, the court shall state the whole evidence so produced as aforesaid, that the same may become a part of the record. vise decision by If nonsuit is set SECT. 183. If such judgment of nonsuit shall be set aside, either aside, cause shall on motion as aforesaid, or by motion in error, the cause shall be probe proceeded ceeded with in the same manner as though said motion had not been granted. with. The jury may verdict. SECT. 184. The court shall determine questions of law referred give a special to it by the jury in a special verdict, which the jury may give when they entertain doubts respecting the points of law arising in the cause, or when the parties request it, in which special verdict they shall find the facts, and state the questions of law-to wit: If the law be so in such a point, then we find for the plaintiff; but if the law be otherwise, then we find for the defendant; and when the jury find a verdict in favor of the plaintiff, they shall assess the damages which he shall be entitled to recover. Court may re second and third SECT. 185. The court may, if it judges the jury have mistaken turn jury to a the evidence in the cause, and have brought in a verdict contrary to consideration. it, or when they have brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for like reason, may return them to a third consideration, and no more.t SECT. 186. The jury, after a cause has been committed to them, shall be under the charge of an officer appointed by the court, who shall permit no person to be present with them or to speak to them, when assembled for deliberation, nor shall the jurors converse with any person, but among themselves, relative to the cause under consideration, before they have returned their verdict, and when they have agreed upon a verdict, they shall return it to the court. If any juror shall converse with any person concerning the cause, except his fellows, while it is under consideration, or shall voluntarily suffer any other person to converse with him, such verdict, on motion, may be set aside, and the court before whom such action is pending, shall * Does not impair the right of trial by jury. Naugatuck R. R. Co. v. Waterbury Button Co. 24 C. R. 468. Nonsuit properly granted, when. Thames Co. v. Housatonic R. R. Co. 24 C. R. 40; Parker v. Middlebrook, same, 207; Newell . Woodruff, 30 C. R. 492. When improperly granted. Fanton v. Fairfield Co. Bank, 23 C. R. 485. + Debt on penal statute falls within this section. Pettis v. Dixon, Kirby, 179. Qui tam actions do not. Meacham v. Austin, 5 Day, 233. Without second and third consideration, verdict may be against evidence. Eagle Bank v. Smith, 5 C. R. 71. Court cannot record a verdict in opposition to that of jury. Hine v. Robbins, 8 C. R. 342. cause such juror to come before it, and if on due inquiry, it shall find him guilty, the court shall inflict on him a fine of seven Penalty for misdollars for the use of the state; and if any juror shall be convicted conduct. a second time of such offense, he shall be forever disqualified to sit as a juror in any case whatever; and if the officer appointed to attend on the jury, or if any of the jurors, shall be guilty of any disorderly conduct, or shall neglect and refuse to perform their respective duties, or shall disobey the orders of the court, the court may inflict a fine on such officer or juror, not exceeding four dollars.* 1855. SECT. 187. A legal verdict may be rendered by any number of Verdict may be jurors not less than nine, in any civil cause in which the parties shall rendered by nine agree in writing, before the rendition of such verdict, that such por- or more jurors, tion of the jury may render the same. agree to try issue SECT. 188. In all actions pending before the superior court, when Parties may the parties shall join issue upon any matter of fact, and shall put in fact by the themselves on the court for the trial of such issue, the judges of such court. court may hear and try the same without a jury, and award damages and costs, and grant executions thereon, in the same manner and on the same principle as in trials by jury.t 1864. Trial without jury. Facts to issues in law. SECT. 189. Whenever any action at law shall be tried by the superior court without a jury, said court shall find upon the motion of either party the facts upon which the judgment of said court is be found. founded and cause such finding to become a part of the record. SECT. 190. When the parties join in demurrer, or in an issue in Court to decide law, the same shall be heard and determined by the court; and the court shall render judgment on all verdicts of the jury according to their finding, with cost, unless the same shall be set aside; and in all cases where judgment is rendered otherwise than on verdict, in favor of the plaintiff, the court shall assess and award the damages which he shall recover. 1848. to sustain an ac defendants, may, SECT. 191. In all actions against two or more defendants, if the A plaintiff failing plaintiff shall fail to sustain a good cause of action against any de- tion against one fendant, he shall not, for that reason, be prevented from recovering of two or more judgment against the other defendant or defendants; and the defen- notwithstanding dant or defendants against whom no recovery is obtained, shall be recover against entitled to judgment for costs. SECT. 192. All actions brought by a soldier, or his wife, or his *Verdict set aside for misconduct of jury, when. Tweedy v. Brush, Kirby, 18; Dana v. Roberts, 1 Root, 184; Bow v. Parsons, 1 Root, 429; Bullock v. Hosford, 2 Root, 349; Bennett v. Howard, 3 Day, 219; Warner v. Robinson, 1 Root, 194. Tallmadge v. Northrop, 1 Root, 522. Verdict not set aside, when. Woodruff v. Whittlesey, Kirby, 60: Nichols v. Bronson, 2 Day, 211; State v. Watkins, 9 C. R. 47; Pettibone v. Phelps, 18 C. R. 445; Woodruff. Richardson, 20 C. R. 238; Hickox v. Parmelee, 21 C. R. 86. Juror cannot testify to his own misconduct as juror. Dana v. Roberts, 1 Root, 134; Howard v. Cobb, 3 Day, 809. Nor to misconduct of his fellows. State v. Freeman, 5 C. R. 848; Meade . Smith, 16 C. R. 346; Haight v. Turner, 21 C. R. 593. Whether the separation of jury before verdict is a ground of setting aside verdict. Lester e. Stanley, 3 Day, 287; Howard v. Cobb, 3 Day, 309; State v. Babcock, 1 C. R. 401. Where, by mistake, a paper calculated to affect the verdict was improperly delivered to jury, verdict set aside. Clark v. Whitaker, 18 C. R. 543. t Judgment not erroneous on issue tried below by court, and above by jury. Talbot . Wheeler, 4 Day, 448. Court is bound to answer the issue. Nichols v. Palmer, 5 Day, 47. Applies to copartners sued under a copartnership named. Benedict v. Stevens, 25 C. R. 292. When plaintiff must withdraw his suit against one defendant and take judgment against the other. Duryee v. Hale, 31 C. R. 217. No objection to a recovery against part of defendants in assumpsit that the promise is declared on as joint promise of all. Dean . Savage, 28 C. R. 359. the other. 1865. When actions for bounty shall be tried. legal representatives to recover any bounty due to him, or his family, shall be tried at the term of the superior court, next succeeding that to which such action may be brought or appealed. CHAPTER XII. OF DAMAGES AND COSTS. Damages on penal bonds. bilities. SECT. 193. In actions on penal bonds, containing conditions which have been forfeited and broken, the court, or the jury, when tried by the jury, shall find and assess such damages as are justly and equitably due, and judgment shall not be rendered for the whole penalty, unless it appears to be due; and if upon a bond with conditions, the breach of which may happen at different times, a suit be brought upon the first breach of such conditions, the court, upon the forfeiture of such bond found, on trial, demurrer, confession, or Successive lia otherwise, shall render judgment for what is due in equity at the time, with cost, and award execution thereon; and upon any further or other breach or neglect of performance of any other particular in the condition annexed to or indorsed upon said bond, the obligee, his executors or administrators, may take out a scire facias against the obligor, his executors or administrators, from the clerk of the court in which the judgment was given, to show cause why execution should not be awarded for the money then due, or damages then sustained; and the court shall render judgment for what shall appear to be due in equity, and grant execution thereon, and so, from time to time till all the particulars mentioned in the condition are performed and completed; but the whole amount of such judgment shall not exceed the penalty of the bond with interest.* Scire facias. 1855. In libel, nothing SECT. 194. In every action for an alleged libel, the defendant but actual dam may give proof of intention; and unless the plaintiff shall prove malice in fact, he shall recover nothing but the actual damage which he has specially alleged in his declaration and has proved.t age, when. 1855, 1859. Cost, when dis. cretionary. SECT. 195. In all actions tried in the superior court, if the damages found by the jury or otherwise shall not exceed fifty dollars, cost, except as hereinafter in this section provided, may be taxed at the discretion of the court, and may be in favor of either party. In all actions of assault and battery, false imprisonment, and slander, brought by appeal to the superior court, if the plaintiff shall recover a sum not exceeding fifty dollars, he shall recover no cost that accrued by reason of the appeal, if he took the appeal; but if the appeal was taken by the defendant, he shall recover full cost. *Obligee can recover no more than the penalty with interest. Carter v. Carter, 4 Day, 30. What tender upon a breach is sufficient. Tracy v Strong, 2 C. R. 659. + Word "malice" means only that the defendant was actuated by improper and unjustifiable motives in making the publication. Moore v. Stevenson, 27 C. R. 14. In trover, full costs allowed, when. Brick v. Reed, 1 Root, 136. Full costs allowed in trespass, when title to land is the principal question. Granger v. Hancock, 2 Root, 88; Adgate v. Stores, 2 Root, 160. But it must be so involved as to be decided. Bishop v. Seeley, 18 C. R. 389. Title may be in question under general issue without taxed. not more favora SECT. 196. Whenever an appeal shall be taken from a justice of When double the peace to the superior court, if a more favorable judgment shall costs may be not be obtained by the appellant in the superior court, the appellant shall recover no cost on such appeal, and the court may at its dis- cost when the cretion allow double costs to the appellee. If the appellant shall judgment is or is obtain a more favorable judgment, the court may at its discretion ble, on appeal. tax cost on the appeal in his favor, and tax no cost on the appeal in favor of the appellee, although the appellee shall obtain judgment in the superior court. In all cases in which an affidavit of merits shall have been filed, and the plaintiff shall recover judgment, if the court shall be of the opinion that such affidavit of merits was filed for the purpose of delay, it may allow to the plaintiff at its discretion, double, treble, or quadruple costs. cost allowed. SECT. 197. Whenever two or more suits at law shall be pending In what cases no in the same court, at the same time, for the recovery of the same debt, damage, or demand, or whenever two or more suits shall be pending before the same court, at the same time, against two or more officers, upon receipts for executions arising from the same original judgment, the court before which such suits shall be pending, shall not tax or allow any costs in any such suit or suits, unless such court shall be of opinion that the commencement of said several suits was necessary to secure said debt, damages, or demand. SECT. 198. In case of bonds given for the prosecution of any Who liable for action or appeal, the surety or sureties shall be liable to satisfy the cost cost that shall be recovered against the principal, if it cannot be had out of his estate, to be recovered by a writ of scire facias, or a proper action on the bond. CHAPTER XIII. OF NEW TRIALS, WRITS OF ERROR, MOTIONS IN ERROR AND RESER- SECT. 199. The superior court shall and may from time to time New trials. as occasion may require, and as by it shall be judged reasonable and proper, grant new trials of causes that shall come before it for mispleading, or discovery of new evidence, or for other reasonable cause, according to the common and usual rules and methods in When the superior court shall be of opinion that the verdict of the jury is against the evidence given in the cause, it may, at its discretion, make a statement of the evidence, and report the same to the supreme court of errors in the county where such action is pending, at its next session, and if such court shall be of such cases. notice, and in such case full costs allowed. Mansfield v. Church, 21 C. R. 73. Whether action is trespass on the case or not is determined by its form rather than its subject matter. Huiniston v. Smith, 22 C. R. 19. Act of 1859 applied to actions pending when act was passed. Taylor v. Keeler, 8 C. R. 324. Exercise of discretionary power in taxing costs not a matter of error. Same. |