road Co. v. Horn, 41 Ind. 479; Hyatt v. Clements, 65 Ind. 12; Rahm v. Deig, 121 Ind. 283.

The party having the burden of proof under a cross-complaint has the right to open and close as to the issues formed upon such complaint. Lynam v. Buckner, 60 Ind. 402. When the plaintiff may recover his entire demand without proof, the defendant has the open and close. McCormick Co. v. Gray, 100 Ind. 285.

Courts may regulate the time of and manner of conducting an argument. Cory v. Silcox, 5 Ind. 370; Lynch v. State, 9 Ind. 541; Redman v. State, 28 Ind. 205; Smith v. Harris, 76 Ind. 104.

The court of its own motion may prohibit improper argument to a jury. Railway Co. v. Myrtle, 51 Ind. 566.

The reading from law books to the jury may be prohibited in civil actions. House v. McKinney, 54 Ind. 240; Scott v. Scott, 124 Ind. 66.

If such reading is permitted over objection it is cause for a new trial. Porter v. Choen, 60 Ind. 338; Baldwin v. Bricker, 86 Ind. 221; Johnson v. Culver, 116 Ind. 278. When the trial is before the court the court may decline to hear an argument. Wallace v. Furber, 62 Ind. 103.

Misconduct in the argument of a cause may be cause for a new trial when objection is made and exceptions taken to the action of the court. Railway Co. v. Myrtle, 51 Ind. 566; Carter v. Carter, 101 Ind. 450; Staser v. Hogan, 120 Ind. 207; Coble v. Eltzroth, 125 Ind. 429; Rudolph v. Landwerlen, 92 Ind. 34; School Town v. Shaw, 100 Ind. 268; Campbell v. Maher, 105 Ind. 383; Nelson v. Welch, 115 Ind. 270; Troyer v. State, 115 Ind. 331.

It should appear that misconduct in argument probably influenced the jury, before a new trial should be granted for that cause. Buscher v. Scully, 107 Ind. 246.

546. (537.) Brief notes by judge.-380. It shall be the duty of the court, when requested by either party, to take brief notes of the evidence of the parties in the order in which the same is introduced on the trial.

547. (538.) View of property and place by jury.-381. Whenever, in the opinion of the court, it is proper for the jury to have a view of real or personal property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of a sworn officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial.

The jury may view the route of a proposed highway, in a case involving its location. Coyner v. Boyd, 55 Ind. 166.

A bill of exceptions may contain all the evidence, notwithstanding the jury had inspection of the place herein. Jeff., etc., R. R. Co. v. Bowen, 40 Ind. 545.

In the absence of the evidence, the supreme court can lower court in ordering a view of property by the jury. 591.

not review the action of the Rozell v. Anderson, 91 Ind.

It is discretionary with the court to send the jury to make a view. Ohio, etc., Co. v. Wrape, 4 App. 100.

The jury can not consider the facts observed in viewing the premises as evidence. Heady. Turnpike Co., 52 Ind. 117; Pittsburgh, etc., R. R. Co. v. Swinney, 59 Ind. 100; Shular v. State, 105 Ind. 289.

As to misconduct of jurors while making view. See Indianapolis v. Scott, 72 Ind. 196. 548. (539.) Deliberation of jury.-382. Whenever a case is finally submitted to the jury, they may decide in court, or retire for deliber

ation. If they retire, they must be kept together in some convenient place, under the charge of a sworn officer, until they agree upon a verdict or are discharged by the court, subject to the discretion of the court to permit them to separate temporarily and at their meals. The officer having them under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court; and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.

All communications had by the judge with a jury after it has retired to deliberate upon a verdict, must be in open court. Hall v. State, 8 Ind. 439; Fish v. Smith, 12 Ind. 563; Smith v. McMillen, 19 Ind. 391; Parmlee v. Sloan, 37 Ind. 469.

The officer in charge of a jury should not be present during its deliberations, and should have no communication with the jury except to inquire as to agreement upon a verdict. Rickard v. State, 74 Ind. 275; Fitzgerald v. Goff, 99 Ind. 28; Clayton v. State, 100 Ind. 201; Houk v. Allen, 126 Ind. 568.

If it appears that the presence of a bailiff in the jury-room was harmless, the fact will be disregarded. Doles v. State, 97 Ind. 555; Fitzgerald v. Goff, 99 Ind. 28; Clayton v. State, 100 Ind. 201.

A bailiff may take a jury to meals under a general order of the court. Cooper v. Robertson, 87 Ind. 222.

Furnishing the jury with apples by the bailiff, is not such misconduct as to be grounds for a new trial. Morningstar v. Cunningham, 110 Ind. 328.

If jurors leave the other jurors and go to a saloon and drink intoxicating liquors, it is cause for a new trial. Davis v. State, 35 Ind. 496. See Carter v. Ford Plate Glass Co., 85 Ind. 180.

Drinking intoxicating liquors by a juror during a proper separation, is no cause for a new trial. Pratt v. State, 56 Ind. 179.

The furnishing to a jury of a law book may be cause for a new trial. Newkirk . State, 27 Ind. 1.

The misconduct of jurors must have probably caused an injury, in order to have a verdict set aside. Harrison v. Price, 22 Ind. 165; Carter v. Ford Plate Glass Co., 85 Ind. 180; Luck v. State, 96 Ind. 16; Drew v. State, 124 Ind. 9; New Albany v. McCulloch, 127 Ind. 500.

The jury, in retiring, can not take with them, except by agreement, any documentary or written evidence in the case. Nichols v. State, 65 Ind. 512.

That the jury, by mistake, took the written instructions of the court, without using, does not invalidate the verdict. Wilds v. Bogan, 57 Ind. 453.

549. (540.) Caution by court at each adjournment.-383. If the jury are permitted to separate, either during the trial or after the cause is submitted to them, they must be admonished by the court that it is their duty not to converse with each other, or suffer themselves to be addressed by any other person, on any subject of the trial; and during the trial, that it is their duty not to form or express among themselves an opinion thereon, until the cause is finally submitted to them. The separation of the jury is a matter in the discretion of the court. When the record shows a separation, it will be presumed they were properly admonished. Alexander r. Dunn, 5 Ind. 122; Evans v. State, 7 Ind. 271; Crocker v. Hoffman, 48 Ind. 207; Rush v. Pedigo, 63 Ind. 479.

As to the separation of a jury and its effect, see Trout v. West, 29 Ind. 51; Rush r. Pedigo, 63 Ind. 479; Riley v. State, 95 Ind. 446.

550. (541.) Further instructions, when had.-384. After the jury have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their attorneys.

The presence of or a notice to parties is mandatory. Jones v. Johnson, 61 Ind. 257. A judge can not go into the jury room to reinstruct the jury. Jones v. Johnson, 61 Ind. 257.

Further instructions may be given to a jury on Sunday. Jones v. Johnson, 61 Ind. 257. The jury may be recalled and further instructions given. Farley v. State, 57 Ind. 331; Breedlove v. Bundy, 96 Ind. 319.

It is improper for the court to send additional instructions to the jury room.
Freeman, 117 Ind. 341.

Low v.

The jury may be recalled and an erroneous instruction corrected. Hartman v. Flaherty, 80 Ind. 472; McClelland v. Louisville, etc., R. W. Co., 94 Ind. 276.

551. (542.) Jury, when discharged.-385. The jury may be discharged by the court, on account of the sickness of a juror, or other accident or calamity requiring the discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.

No efforts should be made by the court to coerce a jury to agree upon a verdict. Terre Haute, etc., R. R. Co. v. Jackson, 81 Ind. 19.

The court should not question a jury as to how much they lack of agreeing. Newell r. Hutchinson, 54 Ind. 330.

An adjournment of court for the term discharges a jury deliberating on a case. Ashbaugh v. Edgecomb, 13 Ind. 466.

552. (543.) Cause again tried.-386. In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately or at a future time, as the court may direct.

553. (544.) Verdict, written and signed.-387. When the jury have agreed upon their verdict, it must be reduced to writing and signed by the foreman; and when returned into court the foreman shall deliver the verdict, and either party may poll the jury. If any juror dissent from the verdict they shall again be sent out to deliberate. A verdict may be received on Sunday. Jones v. Johnson, 61 Ind. 257.

A judge can not receive the verdict out of court. Rosser v. McColly, 9 Ind. 587; Tuhe . Eber, 19 Ind. 126.

A verdict may be received in the absence of the parties. Davis v. State, 14 Ind. 358; Leas v. Cool, 68 Ind. 166.

A person must possess judicial powers to be authorized to receive a verdict. Willett T. Porter, 42 Ind. 250; McClure v. State, 77 Ind. 287.

Discharge of the jury without objection waives the right to poll it. Joy v. State, 14 Ind. 139; Short v. State, 63 Ind. 376.

The reasons for a verdict can not be inquired into on polling a jury. Parks, 26 Ind. 354.

Mitchell v.

The only question that can be asked jurors on a poll of the jury is: "Is this your verdict?" Bowen v. Bowen, 74 Ind. 470.

Verdicts are valid, if intelligible. Jones v. Julian, 12 Ind. 274; Jenkins v. Parkhill, 25 Ind. 473; Gaff v. Hutchinson, 38 Ind. 341; Thames Co. v. Beville, 100 Ind. 309; Hall v. King, 29 Ind. 205; Daniels v. McGinnis, 97 Ind. 549.

In proceedings to establish a highway, the verdict should set forth all facts that the county board should find on establishing a highway. Scraper v. Pipes, 59 Ind. 158. See Early v. Hamilton, 75 Ind. 376.

In replevin the verdict must show the facts necessary to entitle the plaintiff to possession of the property. Ridenour v. Beekman, 68 Ind. 236.

When a verdict is so indefinite that a judgment can not be rendered upon it, it should be set aside. Baughan v. Baughan, 114 Ind. 73.

Mistakes in form or calculation may be corrected in the jury-box. McGregg v. State, 4 Blkf. 101; Harrison v. Jaquess, 29 Ind. 208; Crocker v. Hoffman, 48 Ind. 207; Quinn v. State, 123 Ind. 59.

The jury may be sent back to the jury room to correct a verdict. Reed v. Thayer, 9 Ind. 157; Crocker v. Hoffman, 48 Ind. 207; Railway Co. v. Powell, 40 Ind. 37.

When the amount in controversy is undisputed, the court may insert the amount in a general verdict. Case v. Colter, 66 Ind. 336.

If objection to receiving a verdict because not signed is not made, the error will be deemed waived. Walcott v. Yeager, 11 Ind. 84.

A caption to a verdict is surplusage and an error therein should be disregarded. Rogers v. Overton, 87 Ind. 410.

Verdicts arrived at by means of chance should be set aside. Dunn v. Hall, 8 Blkf. 32; Houk v. Allen, 126 Ind. 568.

In actions to recover unliquidated damages, means may be resorted to in arriving at the amount of damages not permitted in other cases. Guard v. Risk, 11 Ind. 156; Railway Co. v. Myrtle, 51 Ind. 566.

The affidavit of a juror is competent to support, but not to impeach, a verdict. Elliott v. Mills, 10 Ind. 368; Hughes v. Listner, 23 Ind. 396; Haun v. Wilson, 28 Ind. 296; Harding v. Whitney, 40 Ind. 379; Houk v. Allen, 126 Ind. 568.

Statements made by jurors tending to impeach their verdict are not admissible. Dummond v. Leslie, 5 Blkf. 453; McCray v. Stewart, 16 Ind. 377.

If there is no evidence tending to prove a fact essential to be proven to entitle the plaintiff to recover, the court may direct a verdict in favor of the defendant. Porter v. Millard, 18 Ind. 502; Dodge v. Gaylord, 53 Ind. 365; Vance v. Vance, 74 Ind. 370; Wolfe v. McMillan, 117 Ind. 587.

If there is any evidence tending to prove all essential facts, the court can not direct a verdict. Crookshank v. Kellogg, 8 Blkf. 256; Haynes v. Thomas, 7 Ind. 38; Adams v. Kennedy, 90 Ind. 318; Messick v. Railway Co., 128 Ind. 81.

554. (545.) Verdict, general or special.-388. 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 thereon to the court.

A special verdict is not the same as an answer to interrogatories; the latter only obtains when a general verdict is given. A special verdict is never found with a general one. Todd v. Fenton, 66 Ind. 25.

Answers to interrogatories may constitute a special verdict. Paine v. Railroad Co., 31 Ind. 283; Railway Co. v. Hammond, 33 Ind. 379.

Such interrogatories and answers must embrace all the issues. Pea v. Pea, 35 Ind. 387; Kealing v. Voss, 61 Ind. 466.

Either party may require a special verdict to be returned upon all or any of the is

sues. Bird v. Lanius, 7 Ind. 615; Railroad Co. v. Bivens, 13 Ind. 263; Noble v. Enos, 19 Ind. 72.

The court of its own motion may require a special verdict to be returned. e. Sheets, 124 Ind. 416; Weatherly v. Higgins, 6 Ind. 73.

Lowman

Parties should prepare drafts of special verdicts. Railway Co. v. Ruby, 38 Ind. 294; Hopkins v. Stanley, 43 Ind. 553; Railway Co. v. Flannagan, 113 Ind. 488; Railway Co. v. Stupak, 123 Ind. 210.

The jury need not adopt a special verdict prepared by the parties, but may prepare its own. Hopkins v. Stanley, 43 Ind. 553.

The court should submit the drafts of special verdicts prepared by counsel, and should not prepare one of its own. Case v. Ellis, 4 App. 224.

A special verdict must cover and find upon all the issues. 54 Ind. 487; Whitworth v. Ballard, 56 Ind. 279; Graham v. Railway Co. v. Balch, 105 Ind. 93.

Housworth v. Bloomhuff, State, ex rel., 66 Ind. 386;

After the court has indicated in accordance with the statute the instructions that will be given to the jury, it is too late for a party to request a special verdict. Sandford, etc., Co. v. Mullen, 1 App. 204.

A failure to find upon some of the facts in issue is equivalent to a finding against the party who should prove such facts. Henderson v. Dickey, 76 Ind. 264; Glantz v. City, 106 Ind. 305; Railway Co. v. Hart, 119 Ind. 273.

A special verdict should find facts, and not set forth the evidence of facts. The facts should be such that the law will irresistibly infer a certain result. Gordon v. Stockdale, 89 Ind. 240; Railroad Co. v. Spencer, 98 Ind. 186; Waymire v. Lank, 121 Ind. 1; Noblesville Co. v. Loehr, 124 Ind. 79.

If conclusions of law are found the same should be disregarded. Railway Co. v. Bush, 101 Ind. 582; Railway Co. v. Adams, 105 Ind. 151; Railway Co. v. Barnhart, 115 Ind. 399; Railway Co. v. Burger, 124 Ind. 275; Railway Co. v. Finnell, 116 Ind. 414. If material facts proven are not found, the remedy is by a motion for a new trial. Railway Co. v. Bush, 101 Ind. 582; Railway Co. v. Finnell, 116 Ind. 414.

If a general and special verdict is returned, the general verdict will be disregarded. Railway Co. v. Balch, 105 Ind. 93.

If parties think they are entitled to a judgment on a special verdict they should move therefor. Johnson v. Culver, 116 Ind. 278; Railway Co. v. Hart, 119 Ind. 273. If a special verdict states only evidence, the remedy is by a motion for a venire de novo. Jones v. Baird, 76 Ind. 164.

555. (546.) Jury may find special verdict.-389. In all actions, the jury, unless otherwise directed by the court, may, in their discretion, render a general or special verdict; but the court shall, at the request of either party, direct them to give a special verdict in writing upon all or any of the issues; and in all cases, when requested by either party, shall instruct them, if they render a general verdict, to find specially upon particular questions of fact, to be stated in writing. This special finding is to be recorded with the verdict.

Interrogatories can not be submitted to a jury, except upon the condition that they find a general verdict. Manning v. Gasharie, 27 Ind. 399; Killian v. Eigenmann, 57 Ind. 480; Cleveland, etc., R. R. Co. v. Bowen, 70 Ind. 478; Railway Co. v. Worley, 107 Ind. 320.

Answers to interrogatories can not be required when a special verdict is returned. Noble v. Enos, 19 Ind. 72.

Interrogatories submitted without objection can not be withdrawn after the jury retires, because answers were not requested on condition that a general verdict be returned. Otter Creek Co. v. Raney, 34 Ind. 329.

It is too late after the court has begun to instruct the jury to submit interrogatories. Malady v. McEnary, 30 Ind. 273; Miller v. Voss, 40 Ind. 307.