Discharge of jury failing to agree. Plaintiff cannot submit to nonsuit after jury retires. In action to recover money, jury to assess damages. How double, treble, or increased § 1181. Where a jury is empanelled to try an issue, to make an inquiry, or to assess damages, in an action in a court of record, or not of record, or in a special proceeding before an officer, if the jurors cannot agree, after being kept together, for such a time as is deemed reasonable, by the court before which, or the officer before whom, they were empanelled, the court or officer may discharge them, and issue a precept for a new jury, or order another jury to be drawn, as the case requires; and the same proceedings must be had before the new jury, as if it was the jury first empanelled. 2 R. S. 575, § 26; 3 Wait's Pr. 188. § 1182. It is not necessary, in an action in a court of record, to call the plaintiff, when the jurors are about to deliver their verdict; and the plaintiff, in such an action, cannot submit to a nonsuit, after the cause has been committed to the jury, to consider the verdict. Part of Sup. Ct. Rule 38, extended. § 1183. In an action to recover a sum of money only, if a verdict is found, either in favor of the plaintiff, or in favor of a defendant, who has set up a counterclaim for a sum of money, the jury must assess the amount of damages. The jury may also, under the direction of the court, assess the amount of the damages, where the court directs judgment for the plaintiff, on the pleadings. From Code Pro., § 263. See 3 Wait's Pr. 191. § 1184. Where double, treble, or other increased damages, are given by statute, single damages only are to be found by the jury; damages, except in a case where the statute prescribes a different rule. The sum so found must be increased by the court, and judgment rendered accordingly. found and awarded. When verdict to New in form; embodying the rule in Newcomb v. Butterfield, 8 Johns. 342. And see 3 Wait's Pr. 191. § 1185. Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to renthe opin- der a verdict, subject to the opinion of the court. be taken, subject to ion of the court. General and special verdict defined. From Code Pro., § 265, amended. case, it is erroneous for the judge, at the circuit, to direct a verdict for the plaintiff subject to the opinion of the Wilcox v. Hoch, 62 Barb. 509. court. § 1186. A general verdict is one, by which the jury pronounces, generally, upon all or any of the issues, in favor either of the plaintiff, or of the defendant. A special verdict is one, by which the jury finds the facts only, leaving the court to determine, which party is entitled to judgment thereupon. Code Pro., § 260. See Wait's Code, 464; 3 Wait's Pr. 188, 189, 195. There cannot be a general and a special verdict upon the same issue, except so far as the jury may answer specific or special when special with gen dict. § 1187. In an action to recover a sum of money only, or real General property, or a chattel, the jury may render a general or a special verdict, verdict, in its discretion. In any other action, except where one or rendered; more specific questions of fact, stated under the direction of the inding court, are tried by a jury, the court may direct the jury to find a eral verspecial verdict, upon all or any of the issues. Where the jury finds a general verdict, the court may instruct it to find also specially, upon one or more questions of fact, stated in writing. The special verdict or special finding must be in writing; it must be filed with the clerk, and entered in the minutes. From Code Pro., § 261. See Wait's Code, 465, notes; 3 Wait's Pr. 188. In order to raise the question upon appeal, that the discretion of the jury to render a general or special verdict has been interfered with, the objection must be taken upon the trial. A general objection and exception to the submission of certain questions by the finding § 1188. Where a special finding is inconsistent with a general Special verdict, the former controls the latter, and the court must render controls judgment accordingly. Code Pro., § 262. See Wait's Code, 468; 3 Wait's Pr. 188, 190; Phelps v. Vischer, 50 N. Y. (5 Sick.) 69; S. C., 10 Am. Rep. 433; People v. Waterford, etc., Turnpike Co., 3 Abb. Ct. App. 580, 595; S. C., 2 Keyes, 327. corded, the court, upon application Where the foreman of a jury, by mistake, announces a verdict different from that agreed to by a jury, and the erroneous statement is taken and re- 361. general verdict. verdict; quent ings. § 1189. [Amended, 1877.] When the jury renders a verdict, or Entry of finds upon one or more specific questions of fact, stated under the subsedirection of the court, the clerk must make an entry in his minutes, proceedspecifying the time and place of the trial; the names of the jurors and witnesses; the verdict, or the questions and findings thereupon, as the case requires; and the direction, if any, which the court gives, with respect to the subsequent proceedings. Upon the application of the party in whose favor a general verdict is rendered, the clerk must enter judgment, in conformity to the verdict, unless a differ ent direction is given by the court, or it is otherwise specially prescribed by law. From Code Pro., § 264, amended. See Wait's Code, 469; 3 Wait's Pr. 194. The announcement of a verdict, or the bringing in of a sealed verdict by a jury, and the entry thereof by the clerk in his book of minutes is not such a recording as makes the verdict fixed and unalterable; but until the jury are dismissed, their power over their verdict, and their right to alter it so as to make it conform to their real and unanimous intention and purpose, remains. Warner v. New-York Central R. R. Co., 52 N. Y. (7 Sick.) 437. See Herzberg v. Murray, 8 J. & Sp. 271; 3 Wait's Pr. 193. Trials by jury to be as herein provided; juries of TITLE VI. Miscellaneous provisions; including those relating to embra cery, and other acts of misconduct. SEC. 1190. Trials by jury to be as herein provided; juries of part aliens abolished. 1191. Venire not necessary. 1192. Jurors not to be questioned for their verdict. 1193. Penalty where juror takes gift, etc. 1194. Embracery; penalty therefor. 1195. Penalty for juror's non-attendance in special proceeding. 1198. Special return of delinquency and fine to county court. § 1190. A trial by a jury, of an issue of fact, joined in a civil action, in a court of record, must be had, as prescribed in this chappart aliens ter; except in a case where it is otherwise specially prescribed by abolished. law. An alien is not entitled to a jury, composed in part of aliens or strangers, in an action or special proceeding, civil or criminal. 2 R. S. 437, § 53, remodelled. See 3 Wait's Pr. 93. Venire not necessary. Jurors not to be questioned for their verdict. § 1191. A venire to procure jurors cannot be issued in a civil action, brought in a court of record, except as specially prescribed by law. 2 R. S. 427, § 9. § 1192. A juror shall not be questioned, and is not subject to an action, or other liability, civil or criminal, for a verdict rendered by him, in an action in a court of record, or not of record, or in a special proceeding before an officer, except by indictment, for corrupt conduct, in a case prescribed by law. 2 R. S. 439, § 69. where takes gift, § 1193. A person, drawn or notified to attend, as a trial juror, Penalty in an action in a court of record, or not of record, or in a special juror proceeding before an officer, who takes any thing to render his ver- etc. dict, or receives, from a party to the action or special proceeding, a gift or gratuity, forfeits ten times the sum, or ten times the value of that, which he took or received, to the party to the action or special proceeding, aggrieved thereby ; and is also liable to that party, for his damages sustained thereby; besides being subject to the punishment, prescribed by law. 2 R. S. 439, § 70. cery: therefor. § 1194. An embraceor, who procures a person, drawn or notified Embrato attend, as a trial juror, to take gain or profit, contrary to the last penalty section, forfeits ten times the sum, or ten times the value of that, which was so taken, to the party aggrieved thereby; and is also liable to that party for his damages sustained thereby; besides being subject to the punishment, prescribed by law. 2 R. S. 439, § 71, amended. for juror's tendance proceed § 1195. A person, who has been lawfully and personally notified Penalty to attend, as a trial juror, to inquire into a matter or thing, or to non-athear and try a controversy, in a special proceeding, pending before in special a judge, justice of the peace, commissioner, or other officer, and who ing. wilfully neglects to attend, as required by the notice, may be fined by the officer, in a sum, not exceeding twenty-five dollars. But this section does not extend to a case, where special provision is made by law, for punishing the default of a trial juror. 2 R. S. 572, § 4, extended. etc., to jury in alty. § 1196. A sheriff, constable, or other officer, who notified jurors Sheriff, to attend, in a case specified in the last section, must, when keep directed by the officer, before whom the special proceeding is pend- special proceeding, attend, and take charge of the jury. For a wilful neglect to ing; penobey such a direction, or for any misconduct, while attending the jury, by which a right or remedy of a party to the special proceeding may be impaired or prejudiced, he must be fined, by that officer, in a sum not exceeding twenty-five dollars. 2 R. S. 572, § 5. imposi fine. § 1197. Where a fine is imposed, in a case specified in the last Notice of two sections, written notice thereof must be served upon the person tion of fined, to the end that he may apply to the officer imposing it, for the remission of the whole or a part thereof, upon proof that he had a Special return of delin reasonable excuse for his neglect or misconduct, or that other good cause exists for the remission. 2 R. S. 572, § 6, amended. § 1198. If, within thirty days after the service of the notice, the fine has not been remitted by the officer imposing it, he must and fine to make a special return of the delinquency or misconduct, for which quency county court. Collection or remission of fine. the fine was imposed, and of the amount of the fine, accompanied with proof, by affidavit, of service of the notice specified in the last section, to the next term of the county court of the county, in which the delinquent resides. 2 R. S. 572, § 7, amended. § 1199. The county clerk must deliver to the district-attorney, a copy of the return and of the affidavit, at the time when he delivers to him copies of the minutes of fines, imposed by the county court. The fine must be collected, or it may be remitted or reduced, in the same manner as a fine imposed by the county court, upon a defaulting trial juror. 2 R. S. 572, § 8. |