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Parties may a.
when they have agreed upon a verdict, they shall returu Misconduct of it to the court.(7) If any juror shall converse with any jurors.
person concerning the cause, except his fellows, while it
second time of such offence, he shall be forever disqualifiof officer or ed to sit as a juror in any case whatever. And if the of jurors.
ficer appointed to attend on the jury, or any of the jurors,
SECT. 58. In all actions pending before the superior
on the court, for the trial of such issue, the judges of such
principles, as in trials by jury.
determined by the judges of the court: and the court shall
assess and award the damages he shall recover.
or jury, when tried by the jury, shall find and assess such
damages as are justly and equitably due, and judgment Judgment up
shall not be rendered for the whole penalty, unless it apon bonds, the pear to be due. And if upon a bond with conditions, the breach of
breach of which may happen at different times, a suit be happen at dif. brought upon the first breach of such conditions, the ferent times. court, upon the forfeiture of such bond found on trial,
(7) By a statute in the revised code of 1702, the jury were to be confined in the custody of an officer, appointed by the court, till they had agreed upon a verdict. 'Though the statute would have permitted the court to confine the jury, in the same manner as in England, yet a practice was adopted, to permit the jury to adjourn, to
separate, and to take refreshments, so as
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 executors or administrators, may take out a scire-facias against the obligor, his exec- Scire-facias utors, or administrators, from the clerk of the court in for further
breach, 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.
SECT. 61. All actions, wherein the matter in demand Final jurisdicdoes not exceed the value of seventy dollars, and all
tion of the tions brought on bond or note, given for the payment of county court. 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 Appeals from county court, wherein the title of land is drawn in ques- county court. tion, 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 sentence 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 doilars, brought to the county court, in which the title of lands shall be in question betweeen 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, by the party appealing, Bond on apto the adverse party, to prosecute such appeal to effect, peal. 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 determin
ed: 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 accord
ingly, Actions, when SECT. 63. Whenever an appeal is taken from the counremanded.
ty court to the superior court, in an action not appeala. ble, 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 judgment 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. Appeal from
SECT. 64. In all actions brought before any justice of justices of the the peace, demanding not more than seven dollars damapeace, where the right of
ges, charging the defendant with raising or obstructing the water or pas- waters of any stream, river, creek, or arm of the sea, by sage is con the erection of any mill, dam, or other obstructions, in cerned,
which the defendant shall justify the same, by a special plea, stating or alleging a lawful right; and in all actions brought before any justice of the peace, demanding not more than seven dollars damages, charging the defendant with an injury done to land, in which the defendant shall justify the same by a special plea, stating or alleging a right of way; the party who shall be aggrieved by the judgment of such justice of the peace, shall be allowed an appeal to the next county court, in the same county, on giving a bond, with sufficient surety, to prosecute his appeal to effect. And the party who shall be aggrieved by the judgment of such county court, shall be allowed an appeal to the next superior court, in the same county, on giving bond, with sufficient surety, to prosecute his appeal to effect : and the defendant, in all actions appealed as aforesaid, shall not, without liberty of such county, or superior court, amend, alter, or change the
plea so made, before such justice of the peace. Removal of
SECT. 65. When, in an action of trespass quare clauactions op sum fregit, brought before a justice of the peace, demand
ing not more than seven dollars damage, the defendant plea of title shall justify, by a plea of title to the land, a record shall before justice
of the peace. be made thereof, and the matter of fact shall be taken to be confessed, and the defendant shall become bound to the adverse party, before such justice of the peace, with sufficient surety, in a recognizance in a sum not exceeding seventy dollars, that he will prosecute his plea, and enter such cause in the next county court, in the county where the land lies, and prosecute the same to effect, and pay all damages and cost, if he fails to make his plea good: and if he neglect to give such bond, his plea shall be rejected, and the action proceed. And it shall be the duty of the defendant, when he has pleaded and given bond as aforesaid, to obtain certified copies of the proceedings be. fore the justice of the peace; for which he shall pay the same fees as are paid to clerks of courts for copies, and to enter the same in the docket of such county court, before the second opening of the same; and if he should fail to do it, he shall be liable, on such recognizance, to pay to the plaintiff all the damage he has sustained. And if on trial, before such court, he shall fail to make out a title paramount to the title of the plaintiff, he shall pay treble damages and cost.
SECT. 66. In all actions of trespass, and trespass on the Custo, case, tried in any county or superior court, if the damages therein found, by the verdict of the jury, or otherwise, shall not exceed seven dollars, the plaintiff shall recover no more cost than damages, unless the title of land, the right of way, or the right to the use of water, is in question. And in all actions of assault and battery, and of assault and battery and false imprisonment, and of slander, in which the plaintiff shall recover in the superior court, by verdict of the jury, or otherwise, a sum not exceeding seventy dollars, he shall recover no cost, which accrued by reason of the appeal: Provided, that when the defendant, in any
of the actions aforesaid, shall remove such action, by appeal, from a justice of the peace to the county court, or from the county court to the superior court, the plaintiff, on recovering final judgment against the defendant, shall recover his full costs of suit.
SECT. 67. Whenever two or more suits or actions at when no law shall be pending in the same court, at the same time, cost shall be
allowed. for the recovery of the same debt, damage or demand; or whenever two or more suits shall be pending before the same court, at the same time, against two or more officers, upon receipts for executions, arising from the same original judgment, the court before which such suits shall be pending, shall not tax or allow any bills of costs, in any such suit or suits, unless such court shall be of opin
New trials, when to be granted.
Writs or error.
ion that the commencement of said several suits was ne. cessary to secure said debt, damages, or demand.
sect. 68. The superior and county courts shall and may, from time to time, as occasion may require, and as by them shall be judged reasonable and proper, grant new trials of causes that shall come before them, for mispleading, or discovery of new evidence, or for other reasonable cause, according to the common and usual rules and methods in such cases. When the superior court shall be of opinion that the verdict of the jury is against the evidence given in the cause, they may, at their discretion, make a statement of the evidence, and report the same to the supreme court of errors, in the county where such action is pending, at their next session ; and if such court shall be of opinion, that the verdict is against the evidence in the cause, they shall have power, at their discretion, to grant a new trial.(8)
SECT. 69. Writs of error may be brought to the superior court, from the judgments of the county and city courts, and of justices of the peace, for any error in the same, to be proceeded with according to the course of the common law : and when, on such writ of error, the judgment of the inferior court shall not be reversed, but affirmed, by the superior court, the defendant shall recover cost against the plaintiff : but if, on such trial, it shall be determined that the judgment complained of is erroneous, the court shall reverse and set aside the same, and the plaintiff shall recover all he has been damnified thereby; but no cost on the writ of error, in case of a reversal, shall be allowed for either party.
SECT. 70. When any judgment shall be reversed, the plaintiff in the original action, on which such erroneous judgment was given, may enter his action in the said superior court, (unless reversed on a principle that shews the action cannot be sustained,) where it shall be proceeded with, and tried, in the same manner, as if it had or could have been brought there by appeal. And the whole cost in the said action, (excepting the cost on the writ of error,) shall be allowed and taxed in favor of him who shall recover final judgment : provided, that when the original action is of such a nature, that it cannot be tried in the superior court, and it appears that further
Proceedings on reversal.
(8) The doctrine was, for a long time, 1807, (see 3 Day, 29.) when they adoptrecognized, by our courts, that the verdict ed the rule that the court should instruct of the jury was conclusive, and that a new the jury in matters of law. The granting trial could not be granted, because it was of new trials, where the verdict was against law, or evidence. The principle, against evidence, was settled by a decisthat new trials should be granted because ion of the supreme court of errors, in the verdict was against law, was recogni- 1816, and is confirmed and modified, by zed by the supreme court of errors, in this statute. 1 Conn. Rep. 472.