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self at any time before trial, upon the payment of costs, if a counter claim has not been made. If bonds shall have been executed by the plaintiff, the defendant may then have his action thereon. Second, By either party upon the written consent of the other. Third, By the court when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. Fourth, When upon the trial, and before the final submission of the case, the plaintiff abandons it. Fifth, By the court upon the motion of the defendant, when upon the trial the plaintiff' fails to prove a sufficient case for the jury. The dismissal in the first two sub-divisions may be made by an entry in the clerk's register. Judgment may thereupon be entered accordingly.
SEC. 122. In every case other than those mentioned in the last section, the judgment shall be rendered on the merits.
OF ISSUES AND THE MANNER OF THEIR DISPOSITION.
Sec. 123. An issue arises when a fact or conclusion of law is maintained by the one party and controverted by the other. Issues are of two kinds; First, of law. Second, of fact.
SEC. 124. An issue of law arises upon a demurrer to any pleading, or any part thereof.
Sec. 125. An issue of fact arises, First, Upon a material allegation in the complaint controverted by the answer. Second, Upon new matters in the answer, except an issue of law is joined therein.
Sec. 126. An issue of law shall be tried by the court unless it be referred upon consent, as otherwise provided.
SEC. 127. An issue of fact shall be tried by a jury, unless a jury trial be waived, or reference ordered, as provided in this act. Where there are issues both of law and fact to the same complaint, the issues of law shall be first disposed of.
Sec. 128. The clerk shall enter causes upon the docket of the court according to their order in filing, and shall set as many causes for trial on each day of the term as he shall think proper, as they are filed; but no civil cause shall be set for trial on the first day of the term, and no cause shall be tried before the day on which it was set for trial, except by consent of the parties, unless the defendant makes default. All causes not finally disposed of at the close of the term, shall be continued until the next term of the court.
Sec. 129. Either party may bring the issue to trial or to a hearing, and in the absence of the adverse party — unless the court for good cause shown, otherwise direct, - may proceed with his case and take a dismissal of the action, or a verdict or judgment as the case may require.
SEC. 130. A motion to postpone a trial on the ground of the absence of evidence, shall be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it, the witness that the party expects to obtain, and the facts he expects to prove by him, 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. 131. When the action is called for trial by jury, the jurors summoned who have appeared and not been excused, shall be called. If the panel is not full, the sheriff shall summon from the citizens of the county - and not from the by-standers so many competent 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. Such consent shall be entered by the clerk in the minutes of the trial.
SEC. 132. As soon as the jury is completed, an oath or affirmation shall be administered to the jurors, in substance that they each of them will well and truly try the matters in issue between -, the plaintiff, and
the defendant, and a true verdict render according to the evidence.
Sec. 133. Either party may challenge the jurors, but when there are several parties on either side, they shall join in a challenge before it can be made. The challenge shall be to individual Each party
jurors, and shall be either peremptory or for cause. shall be entitled to four peremptory challenges.
Sec. 134. Challenges for cause may be taken on one or more of the following grounds: First, A want of any of the qualifications prescribed by statute to render a person competent as a juror. Second, Consanguinity or affinity within the third degree to either party. Third, Standing in the relation of guardian and ward, magter 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 bond or obligation for either party. Fourth, Having served as a juror, or been a witness, on a previous trial between the same parties for the same cause of action. Fifth, Interest on the part of the juror in the event of the action, or in the main question involved in the action, except the interest of a juror as a member or citizen of the municipal corporation. Sixth, Having formed or expressed an unqualified opinion or belief as to the merits of the action. Seventh, The existence of a state of mind in the juror evincing enmity against, or bias to, either party.
Sec. 135. Challenges for cause shall be tried by the court. The juror challenged, and any other person, may be examined as a witness on the trial of the challenge.
CONDUCT OF THE TRIAL.
Sec. 136. If after the impanelling of the jury, and before verdict, a juror becomes sick, or for any other cause is unable to perform his duty, the court may order him to be discharged in that case, the trial may proceed with the other jurors with the consent of the parties to the action, or a new juror may be sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterwards be impanelled.
Sec. 137. In charging the jury, either party shall be allowed to present to the court written instructions upon matters of law, and argue the same to the court, and the court shall give or refuse such instructions, or may modify or change them in writing, but under no circumstances shall the court give any verbal instructions, or modify or alter any instruction offered by verbal comments; and when any instruction is given, refused, or altered, the court shall note the same thereon in writing; nor shall the court comment upon the testimony further than to inform the jury that they are the exclusive judges of all questions of fact submitted to them, and if the parties or their attorneys require it, the instructions shall be given to the jury before the argument of the cause.
SEC. 138. After hearing the charge, the jury may either decide in court 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 officers, until they agree upon their verdict or are discharged by the court. 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 bimself, 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 upon.
SEC. 139. Upon retiring for deliberation, the jury may take with them the instructions of the court, and all papers.-- except depositions - which have been received as evidence in the case, or copies of such papers as ought not in the opinion of the court to be taken from the person having them in possession. And 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.
SEC. 140. After the jury have retired for deliberation, if there be a disagreement between them as to 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 counsel.
SEC. 141. In all cases where a jury is discharged, or prevented from giving a verdict from any cause, during the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court may direct.
SEC. 142. While the jury is absent, the court may adjourn from time to time, in respect to other business, but it shall nevertheless be deemed open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged. The court may direct the jury to bring in a sealed verdict at the opening of the court, in case of an agreement during a recess or adjournment for the day. A final adjournment of the court for the term shall discharge the jury.
Sec. 143. When the jury shall have agreed upon their verdict, they shall be conducted into court by the officer having them in charge. Their names shall be called, and they shall be asked by the court or clerk whether they have agreed upon their verdict, and if they answer in the affirmative, they shall pass the same to the court or clerk.
SEC. 144. If the verdict be informal or insufficient, in not covering the whole issue or issues submitted, the verdict may be corrected by the jury, under the advice of the court, or the jury may again be sent out.
Sec. 145. When the verdict is given, and is not informal or insufficient, the court or clerk shall read it to the jury and inquire of them whether it be their verdict. If any juror disagrees, the jury may be sent out again, but if no disagreement be expressed, the verdict shall be received and the jury discharged from the case.
Sec. 146. The verdict of the jury shall be either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which they find the facts only, leaving the judgment to the court. The special verdict shall present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact shall be so presented as that nothing shall remain to the court but to draw from them conclusions of law.
SEC. 147. All verdicts shall be rendered in writing, and presented by the foreman of the jury.
Sec. 148. In an action for the recovery of money only, or specific real property, the jury in their discretion may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict upon all or any of the issues, and in all cases may instruct them-if they render a general verdictto find upon particular questions of fact to be stated, and may direct