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necessary to compel the parties to join issue in a reasonable time for trial.
sect. 35. All actions in the superior and county courts, Trial of issue where an issue is joined on any matter of fact, shall be in fact, by tried by a jury of twelve men of the neighbourhood, qual- jury. ified, empanneled, and sworn according to law. (5)
SECT. 36. The civil authority,select-men, constables and Jurors, how grand-jurors in the several towns, shall, some time in the chosen. month of January, annually, meet and choose, by ballot, to serve as jurors in the county and superior courts, in the county to which such towns belong, such number of their able and judicious freeholders as is prescribed by law, each of which shall have a freehold estate, set in the the list at nine dollars or more. There shall be a box provided in the several towns, at the cost of the town, with a lock to it, and lodged in the hands of the townclerk ; and when the jurors are chosen as aforesaid, the town-clerk shall write each man's name, so nominated, on a piece of paper by itself, and put the several names, so written, in the said box, and keep the same, locked, in his hands, that the said names may be drawn as is hereafter provided.
SECT. 37. At some convenient time before the sit- Jurors, how ting of the aforesaid courts, the clerks of the same shall drawn and
summoned. summon fifteen jurors to attend such courts, and shall issue warrants directed to either of the constables of the several towns, or some of them, in the county in which the court is to be held, to summon and warn so many able, judicious and lawful freeholders of the town as their warrant directs, to attend and serve as jurors at such court; and such constable shall repair to the town-clerk, and, in his presence, (or in case of his absence) in the presence of one of the select-men of such town, or a justice of the peace, draw out of the box aforesaid, the number his warrant directs him to summon, without see
(5) The trial by jury was brought, by son should be tried for a crime extending our ancestors, from their native land. In to life or baoishment, but by a special jury, the revised code of 1672, it was provided, summoned for that purpose, consisting of that all causes, where the debi or damage twelve able and judicious men, who exceeded forty shillings, should be tried by should all agree in their verdict. In the a jury of twelve meo, who should tind the revision of 1702, the court have power matter of fact, with the damages and to send the jury to a second and third concosts, and the judges should declare the sideration; and the law has so continued sentence, or direct the jury to find ac ever since. The excellent mode, now in cording to law, with power to return them force, of appoiniing and returning jurors, to a second consideration ; and if they first appears in the revision of 1750. In persisted in their former opinion, to the the revision of 1672, the jury are to be dissatisfaction of the court, to impannel an summoned from the neighboring towns: other jury, and commit the consideration and in the revision of 1702, it is requirof the cause to them : aud to vary and al ed that the jury should consist of twelve ter the damages given in, by any jury, as men, each of whom should have a freehold they should judge most equal and right- estate, worth forty shillings per annum, or eous. It was also provided, that no per- fifty pounds personal estate in the county.
Reture of warrant.
Additional jurors, bow summoned.
Jurors, how designated.
ing the names he draws before he draws them; and shall
SECT. 38. But if any or all whose names are so drawn,
SECT. 39. And if any of the jurors, summoned as aforesaid, do not appear, or shall, for
any cause, be excused from attending court, the court may, at their discretion, from time to time, direct the clerk to issue a warrant or warrants, to summon, in manner as aforesaid, additional jurors, so as to prevent, as far as may be consistent with the convenient dispatch of business, the necessity of filling up the panel of jurors with the names of persons not designated and summoned as aforesaid.
SECT. 40. The clerks of said courts, respectively, in empanneling the jury for the trial of each cause, shall, when more than twelve jurors are attending, as aforesaid, designate, by lot, the names of those who shall compose the panel of jurors.
SECT. 41. If any juror chosen, drawn and summoned as aforesaid, shall make default of appearance, according to the direction of the warrant, he shall forfeit to the treasury of the county wherein he dwells, the sum of two dollars, unless the court, on hearing the excuses made in his behalf, shall judge them sufficient.
SECT. 42. If a sufficient number of jurors, summoned as aforesaid, do not appear, or if, by reason of challenges, or some other cause, there shall not be a sufficient number of lawful men to make up the panel, the court may order the sheriff to return such number of good and lawful freeholders of the county, as may be necessary for that purpose; and when the sheriff is interested, or related to either of the parties, the court may direct the constable, or such officer as they shall appoint, to make such return : which jurors, being so returned, shall perform the duty required of them, on the same penalty as is inflicted on those who make default of appearance; and when the jury are empanneled, they shall take the oath prescribed by law.
SECT. 43. The parties shall have process of subpæna or summons, signed by the clerk of the court, or a justice
Penalty for non-attend
Process for witnesses.
of the peace, to be served by an officer, or indifferent
SECT. 44. When any witness, in a civil cause, lives out Depositions, of the state, or more than twenty miles from the place when and how of trial, is going to sea, or out of the state, or by age,
taken. sickness or bodily infirmity, is unable to travel to court, or is confined in gaol on legal process, his deposition may be taken, by a justice of the peace; provided reasonable notice shall be given to the adverse party, or his known agent or attorney, if either of them live within twenty miles of the place of caption, or left at his usual place of abode, to be present at the time of taking such deposition; and depositions may be taken in any other state or country, by a magistrate, having power to ad. minister oaths. And the witness shall be cautioned to speak the whole truth, shall be carefully examined, shall subscribe his deposition, and make oath to it, before a justice of the peace, who shall attest the same, certify that the adverse party, or his agent, was present, (if so) or that he was notified, if living within twenty miles; whó shall also certify the reason of taking such deposition ; shall seal it up; direct it to the court where it is to be used; and deliver it, if desired, to the party at whose request it was taken.
Sect. 45. The party, his attorney, or any person in- Not to be writterested, shall not write, draw up, or dictate any deposi- ten, by any tion: and every deposition so drawn up, or that shall be person interreturned 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 power Witnesses, to issue a subpæna, upon request, for the appearance of how compelled any witness before him in a civil cause, where he is bound to give deposito sea, is going out of the state, or lives more than twenty
tions. 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
tion of either of the parties to such suit.
directed to the courts of which they are respectively
to issue a commission to take the deposition of any per-
when the court is not in session, on giving notice
SECT. 49. An exemplification by the secretary of this tion of laws of state, of the laws of the several states in the United States, other states,
which have been, or shall hereafter be, transmitted, by admissible.
order of the executives or legislatures of the same, to
dence, in any court in this state.
the United States, printed by authority thereof, shall be states adıuissible.
legal evidence ; and the courts shall take notice of them
judicially. Sworn copies.
SECT. 51. When the clerk of any court, town, society or corporation is absent, or is, hy 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 witnesses.
entries or records are made of their acts, votes and pro-
utes of other
secr. 53. It shall be competent for all corporations, Private corpocreated by private acts, in suits where their corporate declare and rights are concerned, to declare and plead in the same plead. manner, as if erected by public acts.
SECT. 54. It shall be the duty of the court to decide Direction of all questions of law arising in the trial of a cause, and in court to the committing the cause to the jury, to direct them to find jury. 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.(6) 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, Special verreferred to them, by the jury, in a special verdict, which dict. 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 we find for the defendant. And when the jury find a verdict in favor of the plaintiff, Assessment of they shall assess the damages he shall be entitled to re- damages. cover.
SECT. 56. The court shall have power, if they judge Court may the jury have mistaken the evidence in the cause, and send jury to have brought in a verdict contrary to it, or where they further conhave 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 committed Jury to be unto them, shall be under the charge of an officer appointed der the charge 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
(6) lo charging the jury, the former power of directing the jury in matters of practice was, to submit to them the law, law. This was sanctioned hy a rule of the as well as the fact, without expressing supreme court of errors, in 1807; and the any opinion, or giving any direction how mode of charging the jury, both as to the to find their verdict. This practice was, Jaw and the fact, is now so modified by probably, co-eval with the government, the present statute, that the court will and undoubtedly originated from the pow have the power to sum up the evidence, er given the court to return the jury to a explain the testimony, and direct the jurg farther consideration: it continued till in questions of law, in the manner best 1807, (see 3 Day 28.) when it was chang calculated to lead them to a correct deed, and the superior court exercised the termination,