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ent kind of




Issues and the mode of Trial.
SECTION 248. The different kinds of issues.

249. Issue of law.
250. Issue of fact.
251. On issues of both law and fact, the issue of law to be first tried.
252. Issue of law to be tried by the court.
253. Issue of fact to be tried by jury, unless waived or reference

254. Other issues to be tried by the court.
255. All issues to be tried before a single judge.
256. Either party may give notice of trial. Note of issue.

257. Order of disposing of issues on the calendar. § 248. [Sec. 203.] Issues arise upon the pleadings, when The differ a fact or conclusion of law is maintained by the one party issues. and controverted by the other. They are of two kinds :

1. Of law; and 2. Of fact.

Issue of .249. An issue of law arises,

1. Upon a demurrer to the complaint, answer or reply, Passed or to some part thereof.

$ 250. [Sec. 204.] An issue of fact arises,

1. Upon a material allegation in the complaint contro- Amended verted by the answer; or,

2. Upon new matter in the answer controverted by the reply; or,

3. Upon new matter in the reply, except an issue of law is joined thereon.

$ 251. [Sec. 206.] Issues both of law and of fact may On issues arise upon different parts of the pleadings in the same ac- the issue of tion. In such cases, the issues of law must be first tried first tried. unless the court otherwise direct.

The date of the issue on the general term calendar, where an appeal is taken from a judgment upon a report of a referee, is the day of filing the report. Gould and others agt. Chapin and others, 5 How. 358.

Where there are issues of law and fact, and the cause is brought on for trial of the latter, the court will then determine whether it shall be tried before the issue of law is disposed of. Warner vs. Wigers, 2 Sand. 635. $ 252. [Sec. 208.] An issue of law must be tried by the courts Issue

law trial by unless it be referred, as provided in sections 270 and 271. An court.

Issue of fact.


of both law


Amended. issue of fact, in an action for the recovery of money only, or of

specific real or personal property, or for a divorce from the

marriage contract on the ground of adultery, must be tried by fact, tried a jury, unless a jury trial be waived as provided in section

266, or a reference be ordered as provided in sections 270 and

Issue of

by jury. Amended 1849


Issue of fact to be tried by jury, unless


reference ordered.

Other issues to be


Amended 1849.

§ 253. [Sec. 208.] Whenever in an action for the recov

of money only, or of specific real or personal property, waived or there shall be an issue of fact, it must be tried by a jury

unless a jury trial be waived, as provided in section 266, Amended or reference be ordered, as provided in sections 270 and

See Supreme Court Rule, 74.

§ 254. [Sec. 209.] Every other issue is triable by the tried by the court, which, however, may order the whole issue, or any

specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in sections 270 and 271.

$ 255. [Sec. 210.] All issues of fact, triable by a jury or by court, must be tried before a single judge. Issues of fact in the

supreme court, must be tried at a circuit court when the trial 1849, 1851. is by jury, otherwise at a circuit court or special term, as Issues of the court may by its rules prescribe. Issues of law must be eral term. tried at a general term, unless the court order the trial to be

had at a special term.

$ 256. [Sec. 211.] At any time after issue, and at least ten give notice days before the court, either party may give notice of trial.

The party giving the notice shall furnish the clerk at least four days before the court with a note of the issue containing the title of the action, the names of the attorneys and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue.

The day of service to be excluded, and the first day of the court included. Notice of trial for the 21st served on the 11th, held good. Dayton agt. McIntyre and others, 5 How. 117.

All issues of fact be tried by a single judge. Amended

Either par

of trial.

Note of issue.

See section 407, infra and notes, and Supreme Court rules 22, 23, 28, 37.

Commission to take testimony. The defendant will be allowed twenty days after service of reply to apply for a commission. Bank of Charleston vs. Hurlburt, 1 Sand. 717; S. C. 1 Code Rep. 96.

Commission may issue to examine adverse party. Brockway vs. Stanton, 2 Sand. 640; S. C. 1 Code Rep. 128.

It is not necessary that the moving papers should show what county the action is to be tried in. Blackmar agt. Van Inwager, 5 How. 367; Contra, Dodge vs. Rose et al. 1 Code Rep. 123.

Where a commission is likely to produce great injury, terms will be imposed. Ring vs. Mott, 2 Sand. 683.

When the stay of proceedings will be vacated. Voss vs. Fielden, 2 Sand. 690. $ 257. [Sec. 212.] The issues on the calendar shall be Order of

disposing disposed of in the following order; unless, for the conve- of issues nience of parties, or the despatch of business, the court calendar. shall otherwise direct:

1. Issues of fact to be tried by a jury ;
2. Issues of fact to be tried by the court;
3. Issues of law.


Trial by Jury.
SECTION 258. Either party may bring issue to trial.

259. Plaintiff to furnish court with copy summons, pleadings, &c.
260. General and special verdicts defined.
261. Verdict in action for recovery of specific personal property,

when in action for recovery of money only, or real pro-
perty, jury may render either general or special verdict;

and when court may direct special finding.
262. On special finding, with general verdict, former to control.
263. In actions for recovery of money only, jury to assess dama.

264. Entry of verdict.

265. Judgment when to be entered. $ 258. [Sec. 213.] Either party giving the notice, may bring Either parthe issue to trial, and in the absence of the adverse party, unless boringissue the court, for good cause, otherwise direct, may proceed with

Amended his case, and take a dismissal of the complaint, or a verdict of 1851, judgment, as the case may require. A separate trial between a plaintiff and any of the several defendants, may be allowed

Plaintiff to furnish court with

copy of



Amended 1851.





Amended 1849.

by the court, whenever, in its opinion, justice will thereby be promoted.

Where the defendant takes an order dismissing complaint for default of the plaintiff, when the cause is called on the calendar, he is entitled to the trial fee.. Dodd agt. Curry, 4 How. 123.

§ 259. [Sec. 214.) When the issue shall be brought to trial

by the plaintiff, he shall furnish the court with a copy of the pleadings, summons and pleadings with the offer of defendant, if any shall

have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to fur

nish the court with a copy of the summons and pleadings and court copy the offer of the defendant, the same may be furnished by the of plead


§ 260. [Sec. 215.) A general verdict is that by which and special verdicts de- the jury pronounce generally upon 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, leaving the judgment to the court.

$ 261. In an action for the recovery of specific personal escoveryof property, if the property have not been delivered to the personal plaintiff, or the defendant by his answer claim a return

thereof, the jury shall 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.

[Sec. 216.] In every action for the recovery of money only, recovery of or specific real property, the jury, in their discretion, may ly, or real render a general or special verdict. In all other cases the jenden ayh- court may direct the jury to find a special verdict in writor special ing, upon all or any of the issues; and in all cases may when court instruct them, if they render a general verdict, to find special finding.

upon particular questions of fact, to be stated in writing,

Verdict in action for


Amended 1849.

When in action for

money on



former to

covery of money on



and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes.

A special verdict should state facts, and not mere evidence of facts. Hill and Sandford vs. Covell, 1 Com. 522; Langley vs. Warner, 3 Com. 327.

§ 262. [Sec. 217.) Where a special finding of facts shall on special be inconsistent with the general verdict, the former shall with genic

verdict control the latter, and the court shall give judgment ac- control. cordingly.

§ 263. [Sec. 218.) When a verdict is found for the plaintiff For aftions in an action

for tne recovery of money, or for the defendant when a set-off for the recovery of money is established, beyond the assess damamount of the plaintiff's claim as established, the jury must also assess the amount of the recovery; they may also, under 1851, the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off, established at the trial, exceed the plaintiff's demand so established, judgment for the defendant must be given for the excess ; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly.

§ 264. [Sec. 219.] Upon receiving a verdict, the clerk shall Entry of make an entry in his minutes, specifying the time and place of Amended. the trial, the names of the jurors and witnesses, the verdict, and either the judgment to be rendered thereon, or an order that the cause be reserved for argument or further consideration. The justice trying the cause may, in his discretion, and upon such terms as may be just, stay the entry of judgment and further proceedings, until the hearing and final decision of a motion for new trial, or to set aside the verdict or judgment, upon the grounds of surprise or irregularity, or upon a case or bill of exceptions.

The court shall have power to order a verdict to be entered, subject to the opinion of the court thereon. The judge who tries the cause may, in his discretion, entertain a motion to



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