Ismue of

waived or

ordered.

sues to be tried by the court.

tried

jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided in sections 270 and 271. $ 253. Whenever in an action for the recovery of money fact to be

by only, or of specific real or personal property, there shall jury, unless be an issue of fact, it must be tried by a jury unless a jury reference trial be waived, as provided in section 266, or reference be ordered, as provided in sections 270 and 271.

§ 251. Every other issue is triable by the court, which, Other is: however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in sections 270 and 271.

§ 255. All issues of fact, triable by a jury or by court, All issues must be tried before a single judge. Issues of fact in the elemingle a

judge, supreme court, must be tried at a circuit court when the trial is by jury, otherwise at a circuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a general term, unless the court order the trial to be had at a special term,

$ 256. At any time after issue, and at least ten days be- Either parfore the court, either party may give notice of trial. The give notice party giving the notice shall furnish the clerk at least four Note of days before the court with a note of the issue containing the title of the action, the names of the attorneys and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue.

$257. The issues on the calendar shall be disposed of Order of in the following order; unless, for the convenience of par- of issues ties, or the despatch of business, the court shall otherwise direct:

ty may

issue.

CHAPTER III.

Trial by Jury.

Section 258. Either party may bring issue to trial.

259. Plaintiff to furnish court with copy summons, pleadings, &c.
260. General and special verdicts defined.
261. Verdict in action for recovery of specific personal property,

when in action for recovery of money only, or real pro-
perty, jury may render either general or special verdict;

and when court may direct special finding.
262. On special finding, with general verdict, former to control.
263. In actions for recovery of money only, jury to assess dama-

ges.
264. Entry of verdict.
265. Judgment when to be entered.

Either party may

to

Plaintiff 10 furnish court with

summons,

§ 258. Either party giving the notice, may bring the issue boing issue to trial, and in the absence of the adverse party, unless the

court, for good cause, otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. A separate trial between

plaintiff and any of the several defendants, may be allowed by the court, whenever, in its opinion, justice will thereby be promoted.

§ 259. When the issue shall be brought to trial by the copy of plaintiff, he shall furnish the court with a copy of the sumpleadings, mons and pleadings with the offer of defendant, if any shall

have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant.

$260. A general verdict is that by which the jury proand special fined.

nounce 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. Verdiet in $ 261. In an action for the recovery of specific personal

property, if the property have not been delivered to the personal property. plaintiff, or the defendant by his answer claim a return

General

verdicts de

action for recovery of specific

action for

inoney on

property, jury may

er general

verdict, and

may direc o

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.

In every action for the recovery of money only, or spe- When in cific real property, the jury, in their discretion, may ren-recovery of der a general or special verdict. In all other cases thely, or real court may direct the jury to find a special verdict in writ- render eithing, upon all or any of the issues; and in all cases may or special instruct them, if they render a general verdict, to find when court

special upon particular questions of fact, to be stated in writing,

y finding. and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes.

$ 262. Where a special finding of facts shall be incon- On special sistent with the general verdict, the former shall control with gen: the latter, and the court shall give judgment accordingly. control.

§ 263. When a verdict is found for the plaintiff in an Iu actions aclion for the recovery of money, or for the defendant when covery of a set-off for the recovery of money is established, beyond the assess daraamount of the plaintiff's claim as established, the jury must also assess the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off, established at the trial, exceed the plaintiff's demand so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly.

§ 264. Upon receiving a verdict, the clerk shall make an Entry of entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and

finding

eral verdict former to

for the re

money on

to

ages.

upon the

either the judgment to be rendered thereon, or an order that the cause be reserved for argument or further consideration. The justice trying the cause may, in his discretion, and upon such terms as may be just, stay the entry of judgment and further proceedings, until the hearing and final decision of a motion for new trial, or to set aside the verdict or judgment, upon the grounds of surprise or irregularity, or upon a case or bill of exceptions.

The court shall have power to order a verdict to be entered, subject to the opinion of the court thereon. The judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or as being against evidence, or for insufficient evidence, or for excessive damages; but such motion in actions hereafter tried, shall only be heard minutes at the same term or circuit at which the trial is had, and if not heard at the same term or circuit in actions hereafter tried, the motion must be made upon a case or bill of exceptions, or upon appeal. When such motion is heard and decided upon the minutes of the judge, an appeal may be taken from such decision, and in case of appeal, a case or bill of exceptions must be prepared and settled in the usual form, and upon which case or bill of exceptions the argument of the appeal must be had.

After the trial of a cause, either party may, in the manner prescribed by law and the rules of the court in which the action is pending, make and settle a case or bill of exceptions, which when settled shall be filed, and when filed after judgment, shall be attached to and become a part of the judgment roll.

§ 265. Motions for a new trial on a case or bill of excepentered. © tions, motions for judgment on a special verdict or case reserv

ed subject to the opinion of the court, shall in the first instance be keard and decided at a special term, unless the justice try

judgment

be

ing the cause shall direct it to be heard in the first instance at a general term. If such order is granted, directing it to be heard at a general term, such motion may then be noticed and brought on to argument by either party at a general term of such court, and the court shall hear and decide the same.

CHAPTER IV.

Trial by the court.
SECTION 266. Trial by jury how waived.

267. On trial by the court, judgment to be given in twenty days.
268. Exceptions, how and when taken.

269. Proceedings upon judgment on issue of law. § 266. Trial by jury may be waived by the several par- Tolal by

jury, how ties, to an issue of fact, in actions on contract, and with waived. the assent of the court, in other actions, in the manner following:

1. By failing to appear at the trial.

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

3. By oral consent in open court, entered in the minutes. $ 267. Upon a trial of a question of fact by the court, the trial,

couri its decision shall be given in writing, and filed with the

judgment

to be given clerk, within twenty days after the court at which the days. trial took place. Judgment upon the decision shall be entered accordingly.

§ 268. For the purposes of an appeal, either party may ex- Exceptionas cept to a decision on a matter of law arising upon such trial, taken within ten days after notice in writing, of the judgment, in the same manner, and with the same effect as upon a trial by jury. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a bill of exceptions or case containing so much of the evidence and such exceptions as may be material to the question to be raised. The bill of exceptions or case

in twenty

how