and be filed in the county clerk's office; nor shall the same be considered executed until they are so filed.

SEC. 265. If a complainant shall desire the appointment of a receiver at the commencement of the action, he shall pray such appointment in his bill. If the occasion for a receiver shall arise while the suit is pending, the application shall be made by a petition entitled in the cause, signed and verified by the applicant, and setting forth the facts and circumstances making such appointment necessary or proper.

SEC. 266. Any party to the suit may, upon the hearing of the application, show, by affidavit or otherwise, objections to the proposed suretics, and to the proposed receiver, and what is the value of the property to be taken possession of, and that a receiver ought not to be appointed. He may also nominate a person to be receiver, giving at the same time, the names of his proposed sureties. No person shall be appointed receiver who is party, solicitor, counsel, or in any manner interested in the suit.

SEC. 267. Every order appointing a receiver shall contain special directions in respect to his powers and duties, and upon application of any party to the suit, after due notice thereof, such further directions shall be made in that behalf by the court or judge as may, in the further progress of the cause become proper.

SEC. 268. Every receiver shall be considered the receiver of any party to the suit and no others.

SEC. 269. Every order appointing a receiver without the notice provided for herein, except as otherwise provided by law, shall be void, and every such order heretofore made, under which the appointee has [not] possessed himself of the property in question, shall be suspended until an order, shall have been made, and the bonds executed and filed in accordance with the provisions of this title.

SEC. 270. When a decree shall be rendered in a suit in which a receiver has been appointed, and such decree shall not finally determine the rights of the parties, any one of them may apply to the court for the possession of the property and proceeds thereof, in the receiver's hands. If such

application be resisted, the matter may be referred to a master, to take and report to the court the testimony of the parties. And in the coming in of said report, the court shall, by order, award the possession of the property and the proceeds thereof, to the party entitled thereto; and thereupon, the receiver shall surrender the property and the proceeds thereof, to such party. All orders appointing receivers, giving them further directions and disposing of the property, may be appealed to the supreme court in the same manner as final orders and decrees.

SEC. 271. Whenever in the exercise of its authority, the Punishment. court shall have ordered the deposit or delivery of money, or other thing, and the order is disobeyed, the court, in addition to punishing such disobedience as for 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; Provided, however, That no court or any judge thereof, shall have power to order any receiver to make lasting and valuable improvements on any property that may be in his hands by virture of his receivership, excepting so far as may be necessary to prevent waste of the same while it is so in his hands.

TITLE XII.
Trial-Issue.

SEC. 272. Issues arising on the pleadings, where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds,—

First, Of law.

Second, Of fact.

SEC. 273. An issue of law arises upon a demurrer to the petition, answer or reply, or to some part thereof..

SEC. 274. 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 master in the answer or reply,

Larges.

Arives spon'.

which shall be considered as controverted by the opposite party without further pleading.

SEC. 275. Issues, both of law and of fact, may arise upon different parts of the pleadings in the same action. In such cases, the issues of law must be first tried, unless the court otherwise direct.

SEC. 276. A trial is a judicial examination of the issues, whether of law or of fact, in an action.

SEC. 277. Issues of law must be tried by the court, unless referred, as provided in section two hundred and ninety-five. 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. 278. 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.

TITLE XIII.

Trials by Jury.

SBC. 279. The general mode of summoning, impanelling, challenging and swearing the jury shall be as provided by law. SEC. 280. 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 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.

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.

the place.

SEC. 281. Whenever, in the opinion of the court, it is Jury to view 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 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.

gether.

SEC. 282. When the case is finally submitted to they kept tojury, 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 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.

jury.

SEC. 283. If the jury are permitted to separate, either Separation of 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

Conducted into

court.

Discharged.

Cuse tried again.

Jury polled.

Any juror disagrogs.

duty not to form or express any opinion thereon, until the cause is finally submitted to them.

SEC. 284. 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 question 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 the presence of or after notice to the parties or their counsel.

SEC. 285. 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. 286. In all cases where the jury are discharged during the trial, or after the case is submitted to them, it may be tried again immediately, or at a future time, as the court may direct.

SEC. 287. When the jury has agreed upon their 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. 288. 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 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.

SEC. 289. The verdict of a jury is either general or