court.

SEC. 258. When it is admitted by the pleading or examination Trustee must of a party that he has in his possession or under his control any Intooney money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court or delivered to such party, with or without security, subject to the further direction of the court.

money to be

SEC. 259. Whenever, in the exercise of its authority, a court Power of court shall have ordered the deposit or delivery of money or other thing, to compel and the order is disobeyed, the court, beside punishing the disobe- paid into. dience, as for a contempt, may make an order requiring the sheriff to take the money or thing, and deposit or deliver it in conformity with the direction of the court.

TITLE IX.
Trial-Issue.

SEC. 260. Issues arising on the pleadings, where a fact or con- Trial and isclusion of law is maintained by one party and controverted by the sues.

other. They are,

First, Of law;

Second, Of fact.

SEC. 261. An issue of law arises upon a demurrer to the petition, answer or reply, or to some part thereof. An issue of fact arises,

First, Upon material allegation in the petition, denied by the

answer;

Second, Upon a set-off or counter-claim presented in the answer and denied by the reply;

Third, Upon material new matter in the answer or reply, which shall be considered as controverted by the opposite party without further pleading.

SEC. 262. A trial is a judical examination of the whether of law or of fact, in an action.

issues,

Trial is a judi

cial examination.

must be tried

by the court; court or jury.

of fact, by the

SEC. 263. Issues of law must be tried by the court, unless Issues of law referred, as provided in section two hundred and eighty-one. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided.

SEC. 264. All other issues of fact shall be tried by the court, subject to its power to order an issue or issues to be tried by a. jury, or referred, as provided in this code.

SEC. 265.

Trials by Jury.

The general mode of summoning, impanneling, chal- Trials by jury. lenging and swearing the jury shall be as provided by law.

shall proceed.

SEC. 266. When the jury has been sworn, the trial shall pro- How the trial ceed in the following order, unless the court for special reasons otherwise direct:

First, The plaintiff must briefly state his claim, and may briefly state the evidence by which he expects to sustain it;

Second, The defendant must then briefly state his defense, and may briefly state the evidence he expects to offer to support it;

Instructions

Third, The party who would be defeated, if no evidence were given on either side, must first produce his evidence; the adverse party will then produce his evidence;

Fourth, The parties will then be confined to rebutting evidence, unless the court, for good reasons, in furtherance of justice, permits them to offer evidence in their original case;

Fifth, [Stricken out by act of December 11, 1875.]

Sixth, The parties may then submit or argue the case to the jury. In the argument the party required first to produce his evidence shall have the opening and conclusion. If several defendants, having separate defenses, appear by different counsel, the court shall arrange their relative order;

Seventh, The court shall, at the conclusion of the argument of counsel, or, if there be no argument, at the conclusion of the testimony, instruct the jury as to the law in the case, which instructions shall, in all cases, be in writing, and shall not be orally to the jury to qualified, applied or explained; either party may request instrucbe in writing, and without tions to the jury, which request shall be in writing and must be oral qualifica- made before the commencement of the concluding argument. The court shall give or refuse the instructions so requested withEither party out oral qualification, application or explanation, and shall mark may request thereon "given," or "refused," as the case may be. All instrucinstructions. tions given shall be handed to the jury, to be, by them, returned with their verdict, and shall be filed and preserved with the papers in the case.

tion.

Jury may have view

SEC. 267. Whenever, in the opinion of the court, it is proper property in for the jury to have a view of the property which is the subject litigation. 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 an officer, to the place, which shall be shown to them by some disinterested 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.

Jury may decide the case

eration.

SEC. 268. When the case is finally submitted to the jury, they in court or re- may decide in court or retire for deliberation. If they retire, tire for delib- they must be kept together, in some convenient place, under the charge of an 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 at night or 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 their verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.

When jury

court shall admonish.

SEC. 269. If the jury are permitted to separate, either during separates 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 addressed by any other person, on the subject of the trial, and that it is their duty not to form or express any opinion thereon, until the cause is finally submitted to them.

retired, may

explanation.

SEC. 270. After the jury have retired for deliberation, if there After jury has be a disagreement between them as to any part of the testimony, be conducted or if they desire to be informed as to any question of the law into court for arising in the case, they may request the officer to conduct them to the court, where the information upon the point of law, shall be given, and the court may give its recollection as to the testimony on the point in dispute, in the presence of, or after notice to the parties or their counsel.

discharged by

SEC. 271. The jury may be discharged by the court on account Jury may be of the sickness of a juror, or other accident or calamity requiring the court. their 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.

SEC. 272. In all cases where the jury are discharged during Case must be the trial, or after the case is submitted to them, it may be tried again tried. again immediately, or at a future time, as the court may direct.

dict is agreed

must be con

SEC. 273. When the jury has agreed upon their verdict, they When the vermust be conducted into court, their names called by the clerk, and upon, jury the verdict rendered by the foreman. When the verdict is ducted into announced, either party may require the jury to be polled, which court. is done by the clerk asking each juror if it is his verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.

the foreman, juror disagree

SEC. 274. The verdict shall be written, signed by the foreman, verdict must and read by the clerk to the jury, and the inquiry made whether be signed by it is their verdict. If any juror disagree, the jury must be sent and if any out again; but if no disagreement be expressed, and neither party jury must be require the jury to be polled, the verdict is complete, and the jury shall be discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury before they are discharged, be corrected by the court.

Verdict.

sent out.

SEC. 275. The verdict of a jury is either general or special. A verdict. 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 finds the facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented as that nothing remains to the court but to draw from them conclusions of law.

SEC. 276. 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 verdiet or finding must be filed with the clerk and entered on the journal.

Jury may renspecial ver

der general or

dict.

Facts incon

SEC. 277. When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court sistent with may give judgment accordingly.

general verdict,court will give jud g

SEC. 278. When by the verdict either party is entitled to ment.

Jury must as recover money of the adverse party, the jury in their verdict must assess the amount of recovery.

sess the am't.

Trial by the court.

How the trial shall proceed.

The court

finding gener

Trial by the Court.

SEC. 279. The trial by jury may be waived by the parties in actions arising on contracts, and with the assent of the court, in other actions, in the following manner :

First, By the consent of the party appearing, when the other party fails to appear at the trial by himself or his attorney;

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

Third, By oral consent in open court, entered on the journal. SEC. 280. Upon the trial of questions of fact by the court, it shall state its shall not be necessary for the court to state its finding, except ally, except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law.

when requested, etc.

Trial by ref

erees.

Court may di

Trial by Referees.

SEC. 281. All or any of the issues in the action, whether of fact or of law, or of both, may be referred, upon the written consent of the parties, or upon their oral consent in court, entered upon the journal.

SEC. 282. When the parties do not consent, the court may, rect a refer- upon the application of either, or of its own motion, direct a reference, in all cases in which parties are not entitled by the constitution and laws of the United States to trial by jury.

ence.

How trial before referees,

ducted.

SEC. 283. The trial before referees is conducted in the same shall be con- manner as a trial by court. They have the same power to summon and enforce the attendance of witnesses, administer oaths, and to grant adjournments, as the court upon such trial. They must state the facts found and the conclusion of law separately, and their decisions must be given and may be excepted to and reviewed in like manner. 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. When the reference is to report the facts, the report has the effect of a special verdict.

The parties may agree

or court will appoint.

SEC. 284. In all cases of reference, the parties, except when upon referees, an infant may be a party, may agree upon a suitable person or persons, not exceeding three, and the reference shall be ordered accordingly; and if the parties do not agree, the court shall appoint one or more referees, not exceeding three, who shall be free from exception.

Probate court

SEC. 285. A reference, as provided in this title, cannot be cannot order ordered by a probate court, except by consent of the parties to referees, except by con- the reference and referees.

sent.

Referees shall

SEC. 286. It shall be the duty of the referees to sign any true sign excep- exceptions taken to any order or decision by them made in the case, and return the same, with their report, to the court making the reference.

tions.

Judge in vaca

SEC. 287. A judge in vacation, upon the written consent of

sent of parties

erence.

the parties, may make an order of reference, which the court, of tion, upon con which he is a member, could make in term time. In such case, may order refthe order of reference shall be made on the written agreement of the parties to refer, and shall be filed with the clerk of the court, with the other papers in the case.

be sworn.

SEC. 288. The referees must be sworn or affirmed, well and Referees must faithfully to hear and examine the cause, and to make a just and true report therein, according to the best of their understanding. The oath may be administered by any person authorized to take depositions.

tion of ref

SEC. 289. The referees shall be allowed such compensation for Compensatheir services as the court may deem just and proper, which shall erees. be taxed as a part of the costs in the case.

Exceptions.

SEC. 290. An exception is an objection taken to a decision of Exceptions. the court upon a matter of law.

(Error in numbering; no section left out.)

SEC. 300. The party objecting to the decision must except at Must except the time the decision is made, and time may be given to reduce at the time. the exception to writing, but not beyond the first day of the next

succeeding term.

SEC. 301. No particular form of exception is required. The No form is reexception must be stated, with so much of the evidence as is quired. necessary to explain it and no more, and the whole as briefly as

possible.

ion.

SEC. 302. When the decision objected to is entered on the May except at record, and the grounds of objection appear on the entry, the end of decisexception may be taken by the party causing to be noted, at the end of the decision, that he excepts.

In some cases, his

present them

SEC. 303. When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, party must re the party excepting must reduce his exception to writing, and duces ex present it to the court for its allowance. If true, it shall be the writing and duty of a majority of the judges composing the court, or of the to the court. judge or court before whom the case was or is being tried, to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record, but not spread at large upon the journal. If the writing is not true, the court shall correct it, or suggest the correction to be made, and it shall then be signed as aforesaid.

must be mate

SEC. 304. No exception shall be regarded unless it is material Exception and prejudicial to the substantial rights of the party excepting. rial, SEC. 305. Exceptions taken to the decision of any court of Exceptions record may, by leave of such court, be withdrawn from the files may be withby the party taking the same, at any time before proceedings in error are commenced, and before the exceptions are recorded.

New Trial.

drawn.

SEC. 306. A new trial is a re-examination in the same court of New trial. an issue of fact after a verdict by a jury, report of a referee or a decision by the court. The former verdict, report or decision. shall be vacated and a new trial granted on the application of the