juror become sick.

SEC. 255. If, after the impanelling of a jury, and before verdict, a juror become sick, so as to be unable to perform his duty, the court may order him to be dis- Proceeding if charged. In that case the trial may proceed with the other jurors, or a new jury may be sworn and the trial begun anew; or the jury may be discharged and a new jury then or afterwards impanelled.

Rétirement of jury.

SEC. 256. 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 himself, unless by order of the court, except to ask them if kept together. 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. 257. Upon retiring for deliberation, the jury may take with them all papers, except depositions, accounts, or account books, 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. 258. After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed of 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 presence of, or after notice to, the parties or counsel.

Jury to be

What papers take upon re

jury may

tiring.

Disagreement of jury as to testimony.

SEC. 259. In all cases where a jury are discharged or prevented from giving a verdict by reason of accident If no verdict, or other 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 shall direct.

action tried again.

Adjournment

of court.

Sealed

verdict.

Proceeding

have agreed.

Verdict.

SEC. 260. While the jury are absent the court may adjourn from time to time, in respect to other business; but it shall be nevertheless 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. 261. When the jury have agreed upon their verdict they must be conducted into court, their names when jury called by the clerk, and the verdict rendered by their foreman. The verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict. If any jurors disagree they must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. Either party may require the jury to be polled, which is done by the court Polling of or clerk asking each juror if it is his verdict. If any one answers in the negative the jury must again be sent

jury.

If verdict in

out.

SEC. 262. If the verdict be informal or insufficient in not covering the whole issue or issues submitted, or formal or in- in any particular, the verdict may be corrected by the jury under the advice of the court, or the jury may be again sent out.

sufficient.

SEC. 263. If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with or suffer themselves to be ad

dressed by any other person on the subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them.

CHAPTER VI.-The Verdict.

SEC. 264. The verdict of a jury is 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 plaintiff or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict shall present the Verdict, genconclusions 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.

eral or special

When may be

special.

SEC. 265. In an action for the recovery of money only, or specific 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 in writing upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, general or to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk and entered upon the minutes. Where a special finding of facts shall be inconsistent with the general verdict the former shall control the latter, and the court shall give judgment accordingly.

SEC. 266. When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a counter claim for the recovery of money is established, exceeding the amount of the plaintiff's claim as established, the jury shall also find the amount of the recovery.

When jury to of recovery.

find amount

SEC. 267. In an action for the recovery of specific personal property, if the property has not been delivered If for specific

to the plaintiff, or the defendant by his answer claim a return thereof, the jury, if their verdict be in favor of

personal property, value assessed.

Judgment en

the plaintiff, or if, being in favor of the defendant, they also find that he is entitled to a return thereof, shall find the value of the property (but failure to find all of the facts mentioned in this section shall not invalidate the verdict), 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 taking or detention of such property.

SEC. 268. Upon receiving a verdict an entry shall be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and the verdict; and where a special verdict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consideration, the order thus reserving it.

CHAPTER VII.-Trial by Court.

SEC. 269. Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract or for the recovery of specific real or personal property with or without damages, and, with the assent of the court, in other actions, in manner following:

First. By failing to appear at the trial.

Second. By written consent, in person or by attorney, filed with the clerk.

Third. By oral consent, in open court, entered in the minutes.

In

SEC. 270. Upon a trial of issue of fact by the court, judgment shall be entered in accordance with the finding of the court, and the finding, if required by either party, shall be reduced to writing and filed with the clerk. the finding filed the facts found and the conclusions of tered accord law shall be separately stated. In such cases no judgment shall be reversed on appeal, for want of a finding in writing, at the instance of any party who at the time of the submission of the cause shall not have requested a finding in writing and had such request entered in the minutes of the court; nor in cases tried by the court, by

ing to facts.

a commissioner, or a referee, shall the judgment be reversed on appeal, for defects in the finding, unless exceptions be made in the court below for a defect in the finding; and in cases of exceptions for defective findings, the particular point or issue upon which the party requires a finding to be made, or the particular defect to be remedied, shall be specifically and particularly designated; and upon failure of the court to remedy, or, when tried by a commissioner or referee, to cause to be remedied by such commissioner or referee, the alleged defect, the party moving shall be entitled to his exceptions, and the same shall be settled by the judge as in other cases: Provided, That such exceptions shall be filed in the court and served on the attorney of the adverse party within five days after receiving from or giving to the adverse party written notice of the filing and finding: Provided, That when any cause is tried and submitted upon a written statement of facts agreed to by the parties or their attorneys, such statement shall have the effect of a special verdict or finding of facts, and judgment shall be pronounced thereon as upon a special verdict or finding of facts; and in such case no finding of facts shall be made unless such statement shall fail to embrace all the facts proved and in issue, in which case any additional fact may be found upon evidence which is not repugnant to the agreed statement.

SEC. 271. On a judgment upon an issue of law, if the taking of an account be necessary to enable the court to complete the judgment, a reference may be ordered.

SEC. 272. On a judgment for the plaintiff upon an issue of law, he may proceed in the manner prescribed by the first two sub-divisions of section 236, upon the failure of defendant to answer. If judgment be for the defendant upon an issue of law, and the taking of an account or the proof of any fact be necessary to enable the court to complete the judgment, a reference may be ordered as in that section provided.