when they have agreed upon a verdict, they shall return Misconduct of it to the court.(7) If any juror shall converse with any jurors.

Of officer or jurors.

Parties may agree to try issues in fact, by the court.

Court to de

cide issues in law.

Damages on penal bonds.

person concerning the cause, 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 of ficer 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.

SECT. 58. In all actions pending before the superior and county courts, where the parties shall oin issue upon matter of fact, and agree to, and do, put themselves any 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 demurrer, 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 apJudgment upon bonds, the pear to be due. And if upon a bond with conditions, the breach of which may happen at different times, a suit be happen at dif- brought upon the first breach of such conditions, the court, upon the forfeiture of such bond found on trial,

breach of which may

ferent times.

(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 to give them a reasonable opportunity to consider the cause committed to them, and to agree upon their verdict. The practice under the former statute has been sanctioned by a judicial determination, and the present statute is made conformable to it. 1 Conn. Rep, 402. n.

demurrer, confession, or otherwise, shall render judg ment, 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 ac- 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 dollars, 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

Actions, when remanded.

Appeal from justices of the

peace, where the right of water or passage is concerned.

Removal of actions on

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 accordingly.

SECT. 63. Whenever an appeal is taken from the county court to the superior court, in an action not appealable, 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.

SECT. 64. In all actions brought before any justice of the peace, demanding not more than seven dollars damages, charging the defendant with raising or obstructing the waters of any stream, river, creek, or arm of the sea, by the erection of any mill, dam, or other obstructions, in 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.

SECT. 65. When, in an action of trespass quare clausum 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 exceed ing 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 before 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 Costs. 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 law shall be pending in the same court, at the same time, 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

When no cost shall be

allowed.

New trials, when to be granted.

Writs of er

ror.

Proceedings

on reversal.

ion that the commencement of said several suits was necessary 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

(8) The doctrine was, for a long time, recognized, by our courts, that the verdict of the jury was conclusive, and that a new trial could not be granted, because it was against law, or evidence. The principle, that new trials should be granted because the verdict was against law, was recognized by the supreme court of errors, in

1807, (see 3 Day, 29.) when they adopted the rule that the court should instruct the jury in matters of law. The granting of new trials, where the verdict was against evidence, was settled by a decision of the supreme court of errors, in 1816, and is confirmed and modified, by this statute. 1 Conn. Rep. 472.