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ARTICLE III.

THE VERDICT.

SECTION 790. Definition of verdict, general and special.
791. Discretion of jury to give general or special verdict.
792. Special verdict controls general.

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790. 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 the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, and those conclusions of fact must be so presented, as that nothing remains to the court but to draw from them conclusions of law.

Amended Cede, § 260. Changed so as to be more conformable to the original code.

§ 791. In every 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 in writing, upon all or any of the issues; and in all cases may instruct them if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding must be filed with the clerk and entered upon the minutes.

Amended Code, § 261.

§ 792. Where a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly. Amended Code, § 262.

§ 793. 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, beyond the amount of the plaintiff's claim as established, the jury must also assess the amount of the recovery.

Amended Code, § 263.

§ 794. In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury must, if their verdict be in favor of the plaintiff, or if being in favor of the defendant, they also find that he is entitled to a return thereof, must assess the value of the property, 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.

Amended Code, § 264.

§ 795. Upon receiving a verdict, an entry must be made, in the minutes of the court, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment to be rendered thereon, or where the court is in doubt what judgment

ought to be given, it may order that the case be reserved for argument or further consideration.

Amended Code, sec. 267.

CHAPTER IV.

TRIAL BY THE COURT.

SECTION 796. Jury trial may be waived.

797. On trial by court, decision on questions of fact and of law to be separate.

798. Proceedings after determination of issue of law.

§ 796. Trial by jury may be waived by the several parties, to an issue of fact, in actions arising on obligations, and with the assent of the court, in other actions, in the manner following:

1. By failing to appear at the trial:

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

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

Amended Code, § 266.

§797. Upon the trial of a question of fact by the court, its decision must be given in writing, and filed with the clerk, within twenty days after the circuit or term at which the trial took place. In giving the decision, the facts found, and the conclusions of law, must be separately stated. Judgment upon the decision must be entered accordingly.

Amended Code, § 267. Changed so as to be more conformable to the original code.

§ 798. On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by the first two sub-divisions of section 755, upon the failure of the defendant to answer, where the summons was personally served. 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.

Amended Code, § 269.

CHAPTER VI.

TRIAL BY REFEREES.

SECTION 799. Trial by referees.

800.

Judgment to be entered on report of referees.

§ 799. A trial by referees is conducted in the same manner as a trial by the court.

The sections referred to are conformable to the existing code.

§ 800. The report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner, as if the action had been tried by the court; and their decision. may be excepted to and reviewed in like manner.

When the reference is to report the facts, the report has

the effect of a special verdict.

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§ 801. An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be by the jury, court, or referees, and whether the decision be made during the formation of a jury, the production of evidence, the charge to a jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decision. But no exception is to be regarded on a motion for a new trial, or on an appeal, unless the exception be material, and affect substantial rights of the party.

This chapter and the next are new, and fill up a space left in the former code. The provisions explain themselves.

§ 802. The point of the exception must be particularly stated, and either delivered in writing to the judge, or entered in his minutes, and immediately corrected

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