Sec. 184. An action may be dismissed or a judgment of a nonsuit entered in the following cases: First. By the plaintiff himself, at any time before trial, upon the payment of costs, if a counter claim has not been made. If a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the clerk to the defendant, who may have his action thereon. Second. By either party, upon the written consent of the other. Third. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. Fourth. By the court, when, upon trial, and before the final submission of the case, the plaintiff abandons it. Fifth. By the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury. The dismissal mentioned in the first two sub-divisions shall be made by an entry in the clerk's register. Judgment may thereupon be entered accordingly.

Sec. 185. In every case, other than those mentioned in the last section, the judgments shall be rendered upon the merits.

CHAPTER II.

JUDGMENT UPON FAILURE TO ANSWER.

Section 186. Judgment may be had, if the defendant fail to answer the complaint, as follows: First. In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the clerk of the court within the time specified in the summons, or such future time as may have been granted, the clerk, upon the application of the plaintiff, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, including the costs, against the defendant, or against one or more of several defendants, in the cases provided for in section forty-two. Second. In other actions, if no answer has been filed with the clerk, within the time specified in the summons, or such further time as may have been granted, the clerk shall enter the default of the defendant; and thereafter the plaintiff may apply at the first or any subsequent term of the court for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof; or may, in its discretion, order a reference for that purpose; and where the action is for the recovery of damages in whole or in part, the court may order the damages to be assessed by a jury; or if, to determine the amount of damages, the examination of a long account be necessary, by a reference as above

provided. Third. In actions where the service of the summons. was by publication, the plaintiff, upon the expiration of the time designated in the order of publication may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the court shall thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the territory, shall require the plaintiff or his agent to be examined on oath, respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover.

CHAPTER III.

OF ISSUES AND OF THEIR DISPOSITION.

Sec. 187. Issue-when arises.

Ssc. 188. Issue of law.

Sec. 189. Issue of fact.

Sec. 190. Issue of law-how tried, and of fact.

Sec. 191. Issue of law, first disposed of.

Sec. 192. Causes to be entered on calendar according to date.
Sec. 193. Either party may bring issue to trial.

Sec. 194. Motion to postpone.

Section 187. 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. 188. An issue of law arises upon a demurrer to the complaint or answer, or replication, or to some part thereof.

Sec. 189. 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. 190. An issue of law shall be tried by the court, unless it be referred upon consent, as provided in chapter viii. of this title. An issue of fact, in an action at law, shall be tried by a jury, unless a jury be waived, or a reference ordered, as provided in this

act.

Sec. 191. When there are issues both of law and fact to the same complaint, the issues of law shall be first disposed of.

Sec. 192. 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. 193. Either party may bring the issue to a trial or to a hearing, and in the absence of the adverse party, 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.

Sec. 194. 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 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.

CHAPTER IV.

FORMATION OF THE JURY.

Sec. 195. Jury-how drawn.

Sec. 196. Oath.

Sec. 197. Challenge.

Sec. 198. Challenge for cause.

Sec. 199. Challenge for cause-how tried.
Sec. 200. Challenge-order of.

Sec. 201. Vacancy-how filled.

Section 195. 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, If the 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 necessary, 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 direc

tion 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. 196. 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. 197. 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 peremptory or for cause; each party shall be entitled to four peremptory challenges.

Sec. 198. Challenges for cause may be taken on one or more of the following grounds: 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. 199. 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.

Sec. 200. The plaintiff first, and afterwards the defendant, shall complete his challenges for cause; they may then alternately, in the same order, have the right to challenge peremptorily.

Sec. 201. 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 TRIAL.

Sec. 202. Order of procedure.

Sec. 203. Exceptions to instructions; formal bill not required.
Sec. 204. Jury may view property or place.
Sec. 205. If juror become sick, how to proceed.
Sec. 206. Jury to be kept together after retiring.
Sec. 207. What papers may be taken by jury.
Sec. 208. If jury disagree as to testimony.
Sec. 209. If jury disagree, action to be tried again.
Sec. 210. Adjournment of court, sealed verdict, &c.
Sec. 211. When jury have agreed.

Sec. 212. Verdict, if informal or insufficient.
Sec. 213. Verdict-when complete.

Section 202. 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 issues, may briefly state his case, and the evidence by which he expects to sustain it. Second. The adverse party may then briefly state his defence, 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. 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.