SEC. 278. Of fact, how formed.]-An issue of fact arises: First. Upon a 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.

CHAPTER II.-TRIAL.

SEC. 279. [Defined.]—A trial is a judicial examination of the issues, whether of law or of fact, in an action.

SEC. 280. [Issues, how tried.]-Issues of law must be tried by the court, unless referred as provided in section two hundred and ninety-eight.

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. 281. [Same.]-All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred as provided in this code.

SEC. 281 a. [Actions, when triable.]-SEC. 9. Actions shall be triable at the first term of the court, after the issues therein, by the times fixed for pleading, are, or should have been made up; and when, by the times fixed for pleading, the issues are, or should have been made up during a term, such action shall be triable at that term. When the issues are, or should have been, made up, either before or during a term of court, but after the period for preparing the trial docket of such term, the clerk shall place such actions on the trial docket of that term. [G. S. 713.]

TRIALS BY JURY.

SEC. 282. [Formation of jury.]-The general mode of summoning, impaneling, challenging, and swearing the jury, is not changed by this code. [R. S. 441. G. S. 572.]

SEC. 283. [Order of proceedings.-When the jury has been sworn the trial shall proceed in the following order, unless the court for special reasons otherwise direct: First. The plaintiff must briefly state his claim, and may briefly

SEC. 280. Issues properly presented by the pleadings must be decided before judgment is entered. 8 Neb. 168. SEC 281. a. Being section 9 of "an act to amend the code of civil procedure," taking effect Sept. 1, 1873. Gen. Stat. 713.

SEC. 283. Court may refuse instructions requested if the substance has already been given. 1 Neb. 120. Jury may return into court for further instructions. Î Neb. 207. Where there is no evidence it is not error to charge jury that a fact is unproved. 10 Neb. 523. But it is error to direct jury how they shall find, if facts are in dispute. 6 Neb. 89. And if there is any evidence by which a finding in favor of him on whom rests the burden of proof cau be upheld, the court should not direct a verdict against him. 8 Neb. 209; and the converse of this is also true. Id. The assumption by the court that there is evidence by which jury may find a particular fact, when there is no such evidence, and instructions which tend to mislead the jury are good grounds for new trial. 1 Neb. 319, 358. 2 Neb. 338. 4 Neb. 555. 5 Neb. 216. 6 Neb. 159, 434. 8 Neb. 90, 159, 272, 431. 10 Neb. 292. An instruction abstractly correct but not based on evidence, may be rejected. 6 Neb. 418, 498. 8 Neb. 277. But if an erroneous charge be given on an abstract proposition of law, and verdict is supported by proof the judgment will not be disturbed. 1 Neb. 319. 2 Neb. 297. A request to instruct which states the law correctly in any possible view of the case ought not to be refused. 6 Neb. 320. But if it contain several propositions so confused and indefinite, as to some of them, as to convey no clear idea of what is intended, the whole may be properly rejected. Id. And a request to charge that there is no proof of a certain matter, when there is some, though very slight, should be refused. 6 Neb. 436. 8 Neb. 432. If jury disregard instructions or testimony verdict should be set aside. 2 Neb. 342. 9 Neb. 490. It is not error to refuse an instruction although correct law, and applicable to the case if it has the effect of withdrawing material testimony from the jury, 9 Neb. 72. Correct and necessary instructions asked before jury retires should be given notwithstanding a rule requiring all instructions to be submitted before commencing argument. 5 Neb. 191. The jury are to judge of credibility of witnesses. 5 Neb. 438, 547. 7 Neb. 309. The court may lay down rules, but their application should be left to the jury. 6 Neb 490. As to form of questions and cross-examination see 3 Neb. 123; 5 Neb. 183; 7 Neb. 87; 8 Neb. 157; 9 Neb. 241; 10 Neb. 387, and note. Discretion of court in granting non-suit. 9 Neb. 399. Where there is testimony tending to support a cause of action non-suit should not be granted. 9 Neb. 417. Where evidence is before the court, which is unimpeached the court cannot disregard it. If improper it should be excluded. If properly admitted it should be considered and given due weight. 6 Neb. 355. Additional evidence may be admitted after the case has been submitted. 8 Neb. 388, 390. Order of iatroducing evidence is discretionary. 10 Neb. 274. Party introducing erroneous evidence is oound by what it proves. 10 Neb. 573. If counsel are limited in time for argument, and no objection is made before submission of case to jury, it is too late afterward to complain. 8 Neb. 159. So if the record fails to show that counsel were not called to order for misconduct or that the court was requested to contine them within the bounds of legitimate discussion, the judgment will not be reversed. Aliter, if questions were properly presented. 8 Neb. 160. 9 Neb. 316. For provisions requiring instructions to be in writing see ante page 203, and notes. See 11 Neb. 116, 122. City of Crête v. Childs, 11 Neb. Eaton v. Carruth, Id.

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 in support of it. 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. When the evidence is concluded either party may request instructions to the jury on points of law, which shall be given or refused by the court, which instructions shall be reduced to writing, if either party require it. 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 may again charge the jury after the argument is concluded. [Id. G. S. 573.]

SEC. 284. [View of property or place.]-Whenever, in the opinion of the court, it is proper for the jury to have a view of 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 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.

SEC. 285. [Deliberation-Conduct.]-When the case is finally submitted to the jury, they may decide in court or retire for deliberation. If they retire, 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 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 their verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.

SEC. 286. [Separation during trial.-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 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.

SEC. 287. [Instruction after retiring.—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 as to any part of the law 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 presence of or after notice to the parties or their counsel.

SEC. 288. [Discharge of jury.]-The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring 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. 289. [Second trial, when.]-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.

THE VERDICT.

SEC. 290. [Jury polled.]-When the jury have agreed upon their verdict,

SEC. 285. It seems that merely allowing the jury to take with them documentary evidence, is not sufficient of itself to disturb their verdict. 4 Neb. 83. SEC. 290. Verdict must respond to all material issues between the parties. 1 Neb. 317. Sealed verdict

they must be conducted into court, their names called by the clerk, and the verdict rendered by the foreman. When the verdict is announced, either party may require the jury to be polled, which 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.

SEC. 291. [Requisites.]—The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagree, the jury 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. 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.

SEC. 292. [General-Special.]-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 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. 293. [Rendition Special verdict-Record.]--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 on the journal.

SEC. 294. [Special finding controls general.]-When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.

SEC. 295. [Amount of recovery-Assessment.]-When by the verdict either party is entitled to recover money of the adverse party, the jury in their verdict must assess the amount of recovery.

TRIAL BY THE COURT.

SEC. 296. [Jury trial, how waived.]-The trial by jury may be waived by the parties in actions arising on contract, 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 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. 297. [Finding.]-Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, 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.

TRIAL BY REFEREES.

SEC. 298. [By consent of parties.]-All or any of the issues in the action,

received by judge under certain circumstances, held to be a privy verdict and of no force and validity, not having been affirmed in open court. 4 Neb. 89. 10 Neb. 107.

SEC. 291. Where a verdict is defective in form merely, the court may direct jury to amend it. 7 Neb. 83. See also 11 Neb. 144.

SEC. 296. Jury may be waived and damages assessed by court in actions of replevin. 6 Neb. 473.

SEC. 297. Cited 2 Neb. 317. If finding be vague, uncertain and indefinite, it will not sustain the judg ment. 3 Neb. 255. Finding against A and B, will not sustain a judgment against A and C. 8 Neb. 168. Findings have same weight as a verdict. 5 Neb. 89. 8 Neb. 426. 9 Neb. 187. If court omits to state its findings of fact and law separately when requested, and no exception is taken, it will be considered as a waiver of the demand and an acquiescence in a general finding. 7 Neb. 193. Where a special finding in its effect negatives facts alleged in answer, it is equivalent to an affirmative finding that they are untrue. 9 Neb. 188.

SEC. 298. A purely legal action cannot be referred, except by consent of parties. 3 Neb. 94. 5 Neb.

whether of fact or law, or both, may be referred, upon the written consent of the parties, or upon their oral consent in court entered upon the journal.

SEC. 299. [By order of court.--When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in either of the following cases: First. Where the trial of an issue of fact shall require the examination of mutual accounts, or where the account is on one side only, and it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness to prove the account; in which cases the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein. Second. Where the taking of an account shall be necessary for the information of the court before judgment, in cases which may be determined by the court, or for carrying a judgment into effect. Third. Where a question of fact, other than upon the pleadings, shall arise upon motion or otherwise, in any stage of an action.

SEC. 300. [How conducted-Duties -- Powers.]-The trial before referees is conducted in the same manner as a trial by the court. They have the same power to summon and enforce the attendance of witnesses, to administer all necessary oaths in the trial of the case, and to grant adjournments, as the court upon such trial. They must state the facts found and the conclusions of law, separately, and their decision 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.

SEC. 301. [Referees - How chosen,]-In all cases of reference, the parties, except when 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.

SEC. 302. Reference by county court.]-A reference as provided in this chapter cannot be ordered by a probate court, except by consent of parties to the reference and referees.

SEC. 303. [Exceptions.]-It shall be the duty of the referees to sign any true 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.

SEC. 304. [Reference in vacation.]—A__judge in vacation, upon the written consent of the parties, may make any order of reference which the court, of which he is a member, could make in term time. In such case, the 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.

SEC. 305. [Referee-Oath.j-The referees must be sworn or affirmed well and 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.

SEC. 306. [Same-Compensation.]-The referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as a part of costs in the case.

154. 6 Neb. 382. But consent will be presumed when record fails to show that objections were made to a reference. 6 Neb. 382.

SEC. 300. See sec. 867 and note. Report has the same effect as verdict. 3 Neb. 93. 4 Neb. 199. The exceptions apply only to findings of fact or conclusion of law of the referee. 11 Neb. 130.

SEC. 301. In partition referee may be appointed to take account of rents and profits and to make partition of premises. 3 Neb. 92.

SEC. 303. When no exceptions are taken referee's finding of facts will be conclusive. 6 Neb. 378. Bill of exceptions should be signed by him. 10 Neb. 331. And to obtain a review of his decision a motion for a new trial is necessary. 5 Neb. 237. 11 Neb. 130.

SEC. 305. The failure to take oath is waived by parties proceeding to trial without objection on that ground. 5 Neb. 126, 156.

EXCEPTIONS.

SEC. 307. [Defined.]-An exception is an objection taken to a decision of the court upon a matter of law.

SEC. 308. [When taken.]-The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the same to writing as hereinafter provided. [Amended 1877, 17. Took effect June 1, 1877.]

SEC. 309. [Form.]-No particular form of exception is required. The excep tion must be stated, with so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible.

SEC. 310. [How taken-Record.)-Where the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts.

SEC. 311. [Bill of exceptions.]-When the decision is not entered on the record or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing within fifteen (15) days, or in such time as the court may direct, not exceeding forty (40) days from the adjournment of the court sine die, and submit the same to the adverse party or his attorney of record for examination and amendment if desired. Such draft must contain all the exceptions taken upon which the party relies. Within ten days after such submission the adverse party may propose amendments thereto and shall return said bill with his proposed amendments to the other party, or his attorney of record. The bill and proposed amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who heard or tried the case, upon five (5) days notice to the adverse party, or his attorney of record, at which time the judge shall settle the bill of exceptions. If no amendments are proposed, or if proposed and allowed, the proposed bill may be presented with the amendments, if any, to the judge for settlement without notice to the adverse party or his attorney of record. When settled, the bill must be signed by the judge with his certificate to the effect that the same is allowed. In case of the death of the judge, or when it is shown by affidavit that the judge is prevented by sickness, or absence from his district, as well as in cases where the parties interested shall agree upon the bill of exceptions (and shall have attached a written stipulation to that effect to the bill), it shall be the duty of the clerk to settle and sign the bill in the same manner as the judge is by this act required to do; and shall thereupon be filed with the papers in the case, and have the same force and effect as though signed by the court. In cases where a party seeking to obtain the allowance of a bill of exceptions has used due diligence in that behalf,

SEC. 307. General exceptions to a charge are unavailing. Each portion deemed erroneous must be pointed out and excepted to. 1 Neb. 129. 2 Neb. 335, 360. Must be taken at the time the charge is given. 3 Neb. 356. 6 Neb. 284. Grounds of objection to evidence should be stated. 1 Neb. 363. 3 Neb. 235, 279. 4 Neb. 48. 7 Neb. 438. So should grounds of its exclusion. 5 Neb. 230. Exceptions must not be indefinite. 5 Neb. 187. And see 2 Neb. 316. Objection to deposition. 4 Neb. 369.

SEC. 308. This section amended by "Act to amend sections 308 and 311 of chapter 57 of the statutes, entitled "Procedure civil." and to provide for the settling of bills of exceptions," 1877, 11, taking effect June 1, 1877. The original sections required bill to be signed in term. 1 Neb. 175. 3 Neb. 265, 158, 191. 5 Neb. 218. The exceptions must be taken at time decision is made. 7 Neb. 330.

SEC. 309. Cited 1 Neb. 175.

SEC. 310. No exception is necessary to a final order or judgment. 4 Neb. 375. 6 Neb. 224. 9 Neb. 256, and see 2 Neb. 316.

SEC. 311. The bill should state that it contains all the evidence. 1 Neb. 403. 4 Neb. 24, 582. 6 Neb. 417. Affidavits to be available must be preserved by bill. 6 Neb. 102. 8 Neb. 36. 10 Neb. 10. Arguments of counsel should be omitted. 7 Neb. 329. If bill is presented within the 60 days it may be signed afterward. 8 Neb. 97. If it do not appear at what time bill was presented to judge, the presumption is it was presented within the time required by law. Id. Where a shorter period is fixed by court the twenty days within which the bill must be presented to judge dates from that period. 8 Neb. 321. If bill be prepared within the proper time after term at which the decision is rendered it is sufficient, although trial took place at a former term. 8 Neb. 529. If judge resigns clerk cannot settle bill. 9 Neb. 39. Instructions being a part of the record need not be embodied in bill. 9 Neb. 39. The section applies both to legal and equitable actions. 10 Neb. 17. Before bill is signed judge should be satisfied that all parties have had an opportunity to examine it and propose such changes as they desire. Id. If testimony is offered and rejected the bill should set it forth to be available on error. 10 Neb. 235. If a party rely upon the fact that there was no evidence, in a case where evidence was necessary, he must establish it by a proper bill of exceptions. 10 Neb. 185. Effect of a stipulation by attorneys or parties. 8 Neb. 35, 437. These decisions made prior to the present amendment of this section. Instructions, motion for new trial and all matters required to be filled with the clerk and entered on the journal are not a part of the bill. Eaton v. Carruth, 11 Neb.