1. By paying to the plaintiff the proceeds of all sales of perish- TITLE 18. able property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment. 2. If any balance remain due, and an execution shall have been issued on the judgment, he shall sell under the execution, so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands; and in case of the sale of any rights or shares in the stock of a corporation or company, the sheriff shall exccute to the purchaser a certificate of the sale, and the purchaser shall thereupon have all the rights and privileges in respect thereto which were had by the defendNotices of the sales shall be given, and the sales conducted as in other cases of sales on execution. of attach erty. SEC. 144. If, after selling all the property attached by him re- Satisfaction maining in his hands, and applying the proceeds to the payment of ment and rethe judgment and costs, any balance shall remain due, the sheriff turn of propshall proceed to collect such balance as upon an execution in other cases. Whenever the judgment and all the costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the attached property, or the proceeds thereof. Judgment SEC. 145. If the defendant recover judgment against the plaintiff, rendant any undertaking received in the action, all the proceeds of sales, and recovery and money collected by the sheriff, and all the property attached of property. remaining in the sheriff's hands, shall be delivered to the defendant or his agent, and the order of attachment shall be discharged. attachment under taking and Barb. SEC. 146. Whenever the defendant shall have appeared in the Discharge of action, he may apply, upon reasonable notice to the plaintiff, to the by court or judge, for an order to discharge the attachment, upon the release of the execution of the undertaking mentioned in the next section; and property 56 if the application be granted, all the proceeds of sales, and moneys collected by the sheriff, and all the property attached remaining in his hands, shall be released from the attachment and delivered to the defendant. of defend SEC. 147. Upon such application, the defendant shall deliver to Undertaking the court or judge an undertaking, executed by at least two sure-ants. ties, approved by the court or judge, to the effect that the sureties will, on demand, pay to the plaintiff the amount of the judgment that may be recovered against the defendant in the action. The sureties may be required to justify, on application to the court or judge, and the property attached shall not be released from the attachment without their justification, if it be required. may move SEC. 148. The defendant may also, at any time before the time Defendant for answering expires, apply, on motion, to the court or judge to to vacate the discharge the attachment, on the ground that the writ was improperly issued.. writ. tiff may op SEC. 149. If the motion be made upon affidavits on the part of When plainthe defendant, but not otherwise, the plaintiff may oppose the same pose motion by affidavits or other evidence, in addition to those on which the by affidavit. TITLE 1. writ of attachment was issued. If, upon such application, it shall satisfactorily appear that such writ was improperly issued, it shall be discharged. Sheriff when to return writ. SEC. 150. When the writ of attachment shall be fully executed or discharged, the sheriff shall return the same, with his proceedings thereon, to the court in which the action was brought. The different CHAPTER II. OF THE TRIAL AND JUDGMENT IN ACTIONS AT LAW, ISSUES AND THE TITLE I. TITLE III. TITLE IV. TITLE V. TITLE VI. TITLE VII. TITLE VIII. TITLE IX. TITLE XII. Of General Provisions. Of Judgment upon Failure to Answer. Of submitting a Controversy without Action. TITLE XIII. Of the Manner of Giving and Entering Judgment. TITLE I. SEC. 1. The different kinds of issues. 2. Issue of law. 3. Issue of fact. 4. On issues both law and fact, the issue of law to be first tried. 5. Issues how tried. 6. Motion to postpone trial, on the absence of witnesses, how made. SECTION 1. Issues arise upon the pleadings, when a fact or conclukinds of is-sion of law is maintained by the one party, and controverted by the other. They are of two kinds: sues. Issue of law. Issue of fact. Issue of law to be first 1. Of law; and 2. Of fact. SEC. 2. An issue of law arises upon a demurrer to the complaint, answer, or reply, or to some part thereof. SEC. 3. An issue of fact arises, 1. Upon a material allegation in the complaint, controverted by the answer; or 2. Upon new matter or a set-off controverted by the reply; or 3. Upon new matter in the reply. SEC. 4. Issues, both of law and of fact, may arise upon different tried. 2 Sanf. parts of the pleadings in the same action. In such cases the issues of law shall be first tried, unless the court otherwise direct. 685. tried. SEC. 5. An issue of law shall be tried by the court, unless re- TITLE 2. ferred upon consent as provided by statute. An issue of fact shall Issues, how be tried by a jury, unless a jury trial be waived, or a reference be ordered as provided by statute. postpone evidence, to of SEC. 6. A motion to postpone a trial on the ground of the ab- Motion sence of evidence, shall only be made upon affidavit showing the trial on the materiality of the evidence expected to be obtained, and what dili- absence gence has been used to procure it, and also the name and residence how made. of the witness or witnesses. The court may also require the moving party to state, upon affidavit, the evidence which he expects to obtain, and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed. SEC. 7. Jurors how chosen. 8. Challenges how made. TITLE II. 9. Challenge for cause, for what taken. 10. Challenge for cause, to be tried by court. 11. Oath or affirmation to be administered to jurors. 12. Ballots, when to be returned to the box. 13. Power of court over jurors. 14. When juror is taken sick, court how to proceed. 15. When jury retire under charge of an officer; duties of officer having charge of jury. 16. Papers which the jury may refer to. 17. Jury may return to court for information. SEC. 7. When the action is called for trial, the clerk shall pre- Jurors how pare separate ballots, containing the names of the jurors summoned chosen. who have appeared and not been excused, and deposit them in a box. He shall then draw from the box twelve names, and the persons whose names are drawn shall constitute the jury. If the ballots become exhausted before the jury is complete, or if from any cause a juror or jurors be excused or discharged, the sheriff, under the direction of the court, shall summon from the bystanders or citizens of the county, so many qualified persons as may be necessary to complete the jury. The jury shall consist of twelve persons, unless the parties consent to a less number. The parties may consent to any number not less than three, and such consent shall be entered by the clerk on the minutes of the trial. SEC. 8. Either party may challenge the jurors, but when there Challenge. are several parties on either side, they shall join in a challenge before it can be made. The challenges shall be to individual jurors, and shall be peremptory, or for cause. Each party shall be entitled to three peremptory challenges. SEC. 9. Challenges for cause may be taken on one or more of the Challenge following grounds: 1. A want of any of the qualifications prescribed by statute to render a person competent as a juror: 2. Consanguinity or affinity within the third degree to either party: for cause. TITLE 2. 3. Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent to either party; or being a member of the family of either party; or a partner in business with either party; or being security on any undertaking or obligation for either party: 1 Denio, 281; 21 Wen. 509. Challenge for cause, 4. Having served as a juror, or been a witness on a previous trial between the same parties for the same cause of action: 5. Interest on the part of the juror in the event of the action, or in the main question involved in the action: 6. Having formed or expressed an unqualified opinion or belief as to the merits of the action: 7. The existence of a state of mind in the juror evincing enmity against either party. SEC. 10. Challenges for cause shall be tried by the court. The how tried. juror challenged, and any other person as a witness, may be examined on the trial of the challenge. Oath or affirmation of SEC. 11. As soon as the jury is completed, an oath or affirmation jurors. shall be administered to the jurors in substance, that they, each of them, will well and truly try the matter in issue between the plaintiff and the defendant, and a true verdict give according to the evidence. Ballots, how disposed of. Power court of over SEC. 12. When the jury is completed and sworn, the ballots containing the names of the jurors sworn shall be laid aside till the jury so sworn is discharged, and then they shall be returned to the box; and every ballot drawn containing the name of a juror not so sworn, shall be returned to the box as soon as the jury is completed. SEC. 13. The jurors may be kept together in charge of a proper jurors. officer, or may, in the discretion of the court, at any time before the submission of cause to the jury, be permitted to separate; in either case they may be admonished by the court that it is their duty not to converse with any other person, or among themselves, on any subject connected with the trial, or to express any opinion thereon, until the case is finally submitted to them. When juror may be dis consequence thereof. SEC. 14. If, after the impanneling of the jury, and before a vercharged; dict, a juror become sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case, unless the parties agree to proceed with the other jurors, a new juror may be sworn and the trial begin anew; or the jury may be discharged, and a new jury then or afterwards impanneled. Deliberation of jury. SEC. 15. After hearing the charge of the court, the jury may either decide in the court room, or retire for deliberation. If they retire, they shall be kept together in a room provided for them, or some other convenient place, under the charge of one or more 13 Wen. 55. officers, until they agree upon their verdict or are discharged. The . officer shall, to the utmost of his ability, keep the jury together, separate from other persons; he shall not suffer any communication to be made to them, or make any himself, unless by order of the court, except to ask them if they have agreed upon their verdict; and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed TITLE 3. upon. fer to. the SEC. 16. Upon retiring for deliberation, the jury may take with Papers them the pleadings in the cause, and all papers (except depositions) jury may rewhich have been received as evidence on the trial, or copies of such parts of public records, or private documents given in evidence, as ought not, in the opinion of the court, to be taken from the person having them in possession. They may also take with them notes of the testimony or other proceedings on the trial, taken by themselves, or any of them; but none taken by any other person, except by consent of the parties. how given. SEC. 17. After the jury have retired for deliberation, if there be Instructions, a disagreement between them, as to any part of the testimony, or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court, the information required shall be given in the presence of, or after notice to the parties or coun sel. TITLE III. SEC. 18. Verdict is either general or special. 19. Verdict in action to recover personal property. 20. When jury may render special or general verdict. 21. When special verdict controls general. 22. In action for the recovery of money, jury when to assess damages. 23. Informal verdict, how corrected. special ver SEC. 18. The verdict of a jury is either general or special. A General and general verdict is that by which the jury pronounce generally upon diets. 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, 5 Hill, 684. leaving the judgment to the court. action for SEC. 19. In an action for the recovery of specific personal prop- Verdict in erty, if the property have not been delivered to the plaintiff, or personal prothe defendant, by his answer, claim a return thereof, the jury shall perty. 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. may render ral verdict. SEC. 20. In every action for the recovery of money only, or when juries specific real property, the jury, in their discretion, may render a either spe general or special verdict. In all other cases the court may direct cial or genethe jury to find a special verdict in writing upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk and entered upon the minutes. |