Issues-when arise.

CHAPTER. III.-Issues- - Their Mode of Trial.

SEC. 237.—An issue arises when a fact or conclusion of law is maintained by the one party and is controverted by the other. Issues are of two kinds-first, of law; and, second, of fact.

SEC. 238. An issue of law arises upon a demurrer to Issue of law. the complaint or answer, or replication, or to some part thereof.

Issue of fact.

Issue of law -how tried.

What issues

to be tried by jury.

SEC. 239. An issue of fact arises, first, upon a material allegation in the complaint, controverted by the answer; and, second, upon new matter in the answer controverted by the replication, or upon new matter in the replication, except an issue of law is joined thereon.

SEC. 240. An issue of law must be tried by the court, unless it is referred upon consent.

SEC. 241. In actions for the recovery of specific real property with or without damages, and for an injunction to stay waste, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered by consent of the parties. In all cases where there are issues of both law and fact, the issues of law must be first disposed of, and in Issues of law all cases issues of fact must be tried by a jury (except in actions which involve the settlement of accounts between parties), unless a jury shall be waived by the parties.

first disposed

of.

Causes enter

ed upon court calendar.

Either party

sue to trial.

SEC. 242. The clerk shall enter causes upon the calendar of the court according to the date of the issue. Causes once placed upon the calendar, for a general or special term, if not tried or heard at such term, shall remain upon the calendar from court to court until finally disposed of.

SEC. 243. Either party may bring the issue to a trial, or to a hearing, and in the absence of the adverse party,

may bring is unless the court for good cause otherwise direct, may proceed with his case and take a dismissal of the action, or verdict, or a judgment, as the case may require.

Motion to

SEC. 244. A motion to postpone a trial on grounds of the absence of evidence, shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The court may also require the moving party to state upon affidavit the evidence which he expects to obtain, and if the adverse party thereupon admit that such postpone 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; and upon terms the court may, in its discretion, upon good cause shown, and in furtherance of justice, postpone a trial or proceeding upon other grounds than the absence of evidence.

SEC. 245. The party postponing a trial in any court of record, shall also, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, be then taken, before any judge or clerk of the court in which the cause is pending, or before a notary public, or other officer authorized to take depositions, as the court may indicate, which shall accordingly be done; and the testimony so taken may be read on the trial with the same effect, and subject to the same objections, as if the witness was produced.

CHAPTER IV. - Formation of the Jury.

trial.

If trial be testimony of may be ta

postponed

witnesses

ken.

If the Jury-how

SEC. 246. When the action is called for trial by jury, the clerk shall prepare separate ballots containing the names of the jurors summoned who have appeared and not been excused, and deposit them in a box. He shall then draw from the box twelve names, and the persons whose names are drawn shall constitute the jury. ballot becomes exhausted before the jury is complete, or if from any cause a juror is excused or discharged, the clerk shall, under the direction of the court, draw from the box furnished by the county commissioners, as provided by law, so many additional names as shall be nec

drawn.

Oath of ju

rors.

jurors.

essary, in the manner provided by law, and if the names in the box are exhausted before the jury is complete, the sheriff shall summon, under the direction of the court, from the citizens of the vicinity, and not from bystanders, so many qualified 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. 247. 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 matter at issue between the plaintiff, and the defendant, and a true verdict render according to the evidence.

SEC. 248. 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 jurors, and shall be either perempChallenge of tory or for cause; each party shall be entitled to four peremptory challenges. Either party shall have the right to have the whole jury sworn to answer questions as to their competency in the first instance, and may examine them on any of the matters of challenge for cause. SEC. 249. Challenges for cause may be taken on one or more of the following grounds:

Grounds of challenge for

cause.

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, master 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 juror in the event of the action, or in the main question involved in the action, except the interest of the juror as a member or citizen of a 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. 250. 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.

Challenge for cause-how

tried.

challenge.

SEC. 251. The plaintiff first, and afterwards the defendant, shall complete his challenges for cause; they order may then alternately, in the same order, have the right to challenge peremptorily.

SEC. 252. After each challenge sustained, the vacancy shall be filled before further challenges are made, and any new juror introduced may be challenged for cause, or if the party shall not have exhausted the number of peremptory challenges to which he is entitled, he may be challenged peremptorily.

CHAPTER V.-Conduct of the Trial.

SEC. 253. When the jury has been sworn, the trial shall proceed in the following order, unless the court, for good cause and special reasons, otherwise directs:

First. The party on whom rests the burden of the

of

Vacancy in jury-how filled.

issues may briefly state his case, and the evidence by Order of prowhich he expects to sustain it.

Second. The adverse party may then briefly state his defense, and the evidence he expects to offer in support of it.

Third. The party on whom rests the burden of the issues must first produce his evidence; the adverse party will then produce his evidence.

cedure on trial.

Exceptions to instructions.

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

Fifth. When the evidence is concluded, and either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party, or his attorney, asking the same, and delivered to the court.

Sixth. When the argument of the cause is concluded, the court shall give such instructions to the jury as may be necessary, which instructions shall be in writing, and be numbered and signed by the judge.

Seventh. Where either party asks special instructions to be given to the jury, the court shall either give each instruction as requested, or positively refuse to do so, or give the instruction with a modification, and shall mark or endorse upon each instruction so offered in such manner that it shall distinctly appear what instructions were given in whole or in part, and, in like manner, those refused, so that either party may except to the instructions as given or refused or modified, or to the modification. All instructions given by the court must be filed, together with those refused, as a part of the record. If any party to the trial desires to except to any instruction given by the court, or to the refusal of the court to give an instruction asked for, or any modification thereof, he shall reduce such exception to writing, and file the same with the clerk before the cause is submitted to the jury.

SEC. 254. Whenever, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to Jury may be conducted in a body, under the charge of an 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.

view property or place.