liver it, if desired, to the party at whose request it was taken.* ten, by any per son interested. SECT. 45. The party, his attorney, or any person in- Not to be writterested, shall not write, draw up, or dictate any deposition and every deposition so drawn up, or that shall be returned to the court unsealed, by any other hand than that of the justice of the peace who took it, or the seal of which shall be broken, shall be rejected by the court.† SECT. 46. Every justice of the peace shall have Witnesses, how power to issue a subpoena, upon request, for the apcompelled to give deposi. pearance of any witness before him in a civil cause, tions. where he is bound to sea, is going out of the state, or lives more than twenty miles from the place of trial; and to take his deposition, the adverse party, or his agent, being present, or duly notified, if living within twenty miles of the place of caption: and if such witness should refuse to appear, the justice of the peace may issue a capias, and cause him to be brought before him; and if he shall refuse to give his deposition, the justice of the peace may commit him to prison, till he will comply. And in like manner, the depositions of witnesses living in this state, may be taken, to be used as evidence in a suit depending in any court of judicature in any other of the United States, on application of either of the parties to such suit. SECT. 47. The clerks of the several county and su- Depositions, perior courts shall have power to open any deposition how opened. directed to the courts of which they are respectively clerks, either in vacation, or during the session of the court, in open court, or elsewhere, as may be convenient. take depositions. SECT. 48. Either judge of the superior court, when Commissions to the court is not in session, shall have when nepower, cessary, to issue a commission to take the deposition of any person or persons, resident out of this state, to be used in a cause pending before such court, notice being given to the adverse party to appear before such judge; and the chief judge of each county court, shall have the same power, when the court is not in session, on giving notice to the adverse party, if the deposition is to be used in a cause pending before the county court, of which he is judge. SECT. 49. An exemplification by the secretary of this Exemplificastate, of the laws of the several states in the United tion of laws of *8 C. R. 178. 7 C. R. 143. 304. 3 C. R. 180. 1 C. R. 519. 5 C. R. 335. 1 Day 33. Kirby 234. 283. 100-1. 1 Root 307. 316. 480.493. 103. 76. 81. 154. 2 Root 25. Acts of 1827 and 1833. +5 C. R. 324. 8 C. R. 168. 4 Day 126. missible. other states, ad- States, which have been, or shall hereafter be, transmitted, by order of the executives or legislatures of the same, to the governor of this state, and by him deposited in the office of the said secretary, shall be admissible in evidence, in any court in this state. Printed statutes SECT. 50. The public statutes of the several states of other states in the United States, printed by authority thereof, shall be legal evidence; and the courts shall take notice of them judicially.* admissible. Sworn copies. Certified copies. Private corpo SECT. 51. When the clerk of any court, town, society or corporation is absent, or is, by sickness, or otherwise, unable to perform the duties of his office, the files, records, votes and proceedings of such court, town, society or corporation may be proved in any court of law, by copies examined and sworn to, by credible wit nesses. SECT. 52. In all public offices and corporations, where entries or records are made of their acts, votes and proceedings, by some officer appointed for that purpose, a copy thereof, certified under the hand of such officer, and the seal of such office or corporation, (if there be any) shall be legal evidence: and if any such officer shall, knowingly, make a false certificate, he shall be punishable in the same manner as if guilty of perjury. SECT. 53. It shall be competent for all corporations, rations, how to created by private acts, in suits where their corporate rights are concerned, to declare and plead in the same manner, as if erected by public acts.† declare and plead. Direction of court to the jury. Special verdict. SECT. 54. It shall be the duty of the court to decide all questions of law arising in the trial of a cause, and in committing the cause to the jury, to direct them to find accordingly; and to submit all questions of fact to the jury, with such observations as they may think proper on the evidence, for their information, 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. 55. The court shall determine questions of law, referred to them, 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 question 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 +7 C. R. 86. 3 C. R. 199, 4 C. R. 453. * 6 C. R. 36. 2 Day 559. 1 Day 189. we find for the defendant. And when the jury find a Assessment of verdict in favor of the plaintiff, they shall assess the damages. damages he shall be entitled to recover. consideration. SECT. 56. The court shall have power, if they judge Court may send the jury have mistaken the evidence in the cause, and jury to further have brought in a verdict contrary to it, or where they have brought in a verdict contrary to the direction of the court in a matter of law, to return them to a second consideration, and for like reason shall have power to return them to a third consideration, and no more.* SECT. 57. The jury, after a cause has been commit- Jury to be under the charge ted to them, shall be under the charge of an officer ap- of an officer. pointed 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 ver dict, they shall return it to the court. If any juror Misconduct of shall converse with any person concerning the cause, jurors. 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 cause such juror to come before them, and if, on due enquiry, they shall find him guilty, the court shall inflict on him a fine of seven dollars, for the use of the state; and if any juror shall be convicted a second time of such offence, he shall be forever disqualified to sit as a juror in any case whatever. And if the officer Of officer or ju. appointed to attend on the jury, or 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, then the court may inflict a fine on such officer or juror, not exceeding four dollars.† rors. SECT. 58. In all actions pending before the superior Parties may and county courts, where the parties shall join issue agree to try is sues in fact, by upon any matter of fact, and agree to, and do, put the court. themselves on the court, for the trial of such issue, the judges of such court shall have power to hear and try the same, without a jury, and to award damages and costs, and grant execution thereon, in the same manner, and on the same principles, as in trials by jury.‡ SECT. 59. In all cases, where the parties join in de- Court to decide *9 C. R. 541. 8 C. R. 347. Kirby 179. 416. +3 Day 219. 310. 2 Day 211. 5 C. R. 348. 1 C. R. 401. Kirby 13. 60. 417. 1 Root 134. 194. 429. 522. 2 Root 349. + 4 Day 453. issues in law. Damages on penal bonds. Judgment upon bonds, the murrer, or in an issue in law, the same shall be heard and determined by the judges of 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 he shall recover. SECT. 60. In actions on penal bonds, containing conditions, which have been forfeited and broken, the court, or 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 appear to be due. And if upon a bond with conditions, the breach of which may happen at differbreach of which ent times, a suit be brought upon the first breach of may happen at different times, such conditions, the court, upon the forfeiture of such bond found on trial, demurrer, confession, or 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 Scire-facias for 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 shew 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: provided, that the whole amount of such judgment shall not exceed the penalty in the bond, with interest.* further breach. Final jurisdic tion of the county court. Appeals from county court. SECT. 61. All actions, wherein the matter in demand does not exceed the value of seventy dollars, and all actions brought on bond or note, given for the payment of money only, vouched by two witnesses, (except such matters as may be tried by a justice of the peace) shall be heard, and finally determined, by the county court. SECT. 62. In any action brought to and tried by the county court, wherein the title of land is drawn in question, and determined, or wherein the debt, damage, or matter in dispute shall exceed the value of seventy dollars, (except it be on bond or note, vouched by two witnesses,) if either party shall be aggrieved by the sen * 2 C. R. 662. 4 Day 36. peal. tence or judgment of such court, an appeal shall be allowed to the next superior court in the same county: and in actions of trespass quare clausum fregit, wherein the damages demanded shall be less than seventy dollars, brought to the county court, in which the title of lands shall be in question between the parties, it shall be the duty of such county court, on the trial thereof, to cause a record to be made, that the title of lands was in question in such action, and thereupon an appeal shall be allowed to the superior court, as in other cases: and such appeals shall be entered during the term of the sitting of the court from whence they shall be made; and sufficient bond, with surety, shall be given, Bond on apby the party appealing, to the adverse party, to prosecute such appeal to effect, and answer all damages in case he make not his plea good. And all appeals to the superior court shall be entered before the second opening of said court, and not after, unless the appellant shall pay to the appellee all his cost in such case arisen to that time, which shall not be refunded, however the cause may eventually be determined: which cost, being taxed and paid, the action may be entered by the appellant, before the jury attending such court are dismissed, and not after and if the appellant do not enter his appeal before the jury are dismissed, the appellee may enter the same after the jury are dismissed, and have the judgment of the county court affirmed, with additional cost, and execution granted accordingly.* : SECT. 63. Whenever an appeal is taken from the Actions, when county court to the superior court, in an action not ap-remanded. pealable, the superior court shall remand it to the county court from whence it came, by appeal, and such county court, on the remanding thereof, may, on motion, for any just and reasonable cause appearing, grant a new trial thereon, or make such order as to justice shall appertain. And if the superior court render a judgement in a cause appealed as aforesaid, and the same is brought, by way of error or complaint, before the supreme court of errors, and is by such court reversed, on the ground of its not having been appealable, it shall be the duty of said supreme court, to remand the same to the county court as aforesaid; and thereupon the said county court may, on motion, grant a new trial thereon, or make order on the same as aforesaid.† 10 C. R. 190. 9 C. R. 238. 8 C. R. 500. 7 C. R. 498. 6 C. R. 149. 420. 1 C. R. 392. 4 C. R. 258. +10 C. R. 190. 4 Day 130. 1 Day 152. |