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517. Failure of proof. Where, however, the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof.

Code, s. 271; C. C. P., s. 130.

XX. REFERENCE.

518. By consent. All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties, except in actions to annul a marriage, or for divorce and separation.

Code, s. 420; C. C. P., s. 244.

519. Compulsory. Where the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases:

1. Where the trial of an issue of fact shall require the examination of a long account on either side; in which case the referee may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or,

2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or,

3. When the case involves a complicated question of boundary, or one which requires a personal view of the premises; or,

4. Where a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action; or,

5. Where the issues of fact and questions of fact arise in an action of which the courts of equity of the state had exclusive jurisdiction prior to the adoption of the constitution of one thousand eight hundred and sixty-eight, and in which the matter or amount in dispute is not less than the sum or value of five hundred dollars.

The compulsory reference under this section shall not deprive either party of his constitutional right to a trial of the issues of fact arising on the pleadings, by a jury, but such trial shall be had only upon the written evidence taken before the referee.

Code, s. 421; 1897, c. 237, ss. 1, 2; C. C. P., s. 245.

520. Referees, how chosen; qualifications. In all cases of reference the parties as to whom issues are joined in the action (except when the defendant is an infant or an absentee) may agree in writing upon a person or persons, not exceeding three, and a reference shall be ordered to him or them, and to no other person or persons. And

if such parties do not agree, the court shall appoint one or more referees, not more than three, who shall be free from exception. And no person shall be appointed referee to whom all parties in the action shall object. And no judge or justice of any court shall sit as referee in any action pending in the court of which he is judge or justice, and not already referred, unless the parties otherwise stipulate.

Code, s. 423; C. C. P., s. 247.

521. Referees may administer oaths. Every referee shall have power to administer oaths in any proceeding before him, and shall have generally the power vested in a referee by law.

Code, s. 599; C. C. P., s. 356.

522. Conduct of trial; amendments; contempt punished. The trial by referees shall be conducted in the same manner as a trial by the court. They shall have the same power to grant adjournments and to allow amendments to any pleadings and to the summons, as the court upon such trial, upon the same terms and with like effect. They shall have the same power to preserve order and punish all violations thereof upon such trial, and to compel the attendance of witnesses before them by attachment and to punish them as for contempt for nonattendance or refusal to be sworn or to testify, as is possessed by the court.

Code, s. 422; C. C. P., s. 246.

523. Testimony reduced to writing. The testimony of all the witnesses on both sides shall be reduced to writing by the referee, or under his direction, and signed by the witnesses, and the evidence so taken and signed shall be filed in the cause, and constitute a part of the record.

1897, c. 237, s. 3.

524. Report, when and to whom made; review of; judgment on. The referee shall make and deliver a report within such time as may be ordered by the court. The report of the referee shall be made to the clerk of the court in which the action is pending; either party, during the term or upon ten days' notice to the adverse party out of term, may move the judge to review such report, and set aside, modify or confirm the same in whole or in part, and no judgment shall be entered on any reference except by order of the judge. Code, s. 423; C. C. P., s. 247.

525. Report, what to contain; exceptions; effect of special verdict, when. The referee must state the facts found and the conclusions of law separately; and his decision must be given, and may

be excepted to and reviewed in like manner, and with like effect in all respects as in cases of appeal; and he may in like manner settle a case or exceptions. The report of the referee upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon upon application to the judge. When the reference is to report the facts, the report shall have the effect of a special verdict.

Code, s. 422; C. C. P., s. 246.

XXI. TRIAL.

526. Defined. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

Code, s. 397; C. C. P., s. 223.

527. How issue tried. An issue of law must be tried by the judge or court, unless it be referred. An issue of fact must be tried by a jury, unless a trial by jury be waived, or a reference be ordered. Every other issue is triable by the court, or the judge thereof, who, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it. And when a compulsory reference is ordered either party has the right to have the issues of fact tried by a jury.

Code, ss. 398, 399; C. C. P., ss. 224, 225.

Note. For compulsory reference, see s. 519.

528. Of issues of fact. Every issue of fact joined on the pleadings, and inquiry of damages required to be tried by a jury, shall be tried at the term of the court next ensuing such joinder of issue or order for inquiry: Provided, such issue shall have been joined or order for inquiry made, more than thirty days before such term, but if not, they shall be tried at the second term after such joinder or order.

Code, s. 400; C. C. P., s. 226.

529. Issues of fact before the clerk; bond for cost. All issues of fact joined before the clerk shall be transferred to the superior court for trial at the next succeeding term of such court; and in case of such transfer neither party shall be required to give an undertaking for costs.

530. Continuance before term; affidavit for. Any party to an action may apply to the court in which it is pending, or to the judge thereof, after three days' notice in writing to the adverse party, to have the trial deferred to a term subsequent to that in which it is regularly triable; such application must be made thirty days

before the trial term, and must be on affidavit. The court or judge may defer the trial as asked for, on such terms as shall be just, if satisfied

1. That the applicant has used due diligence to have his case ready for trial; and,

2. That by reason of circumstances beyond his control, which he shall set forth, he can not have a fair trial at the regular trial term; if the application is made by reason of the expected absence of a witness, it shall state the name and residence of the witness, the facts expected to be proved by him, and the grounds for the expectation of his nonattendance, and that the applicant expects to procure his evidence at or before some named subsequent term. applicant shall in all cases pay the costs of the application. Code, s. 401; C. C. P., s. 227.

The

531. Continuance in term. The judge at any time during the term at which an action is triable, may postpone the trial on the application of either party, and on such terms as shall be just, if satisfied

1. That the applicant has used due diligence to be ready for trial. 2. That he can not have a fair trial at that term, by reason of circumstances stated, and if the ground of application be the nonattendance of a witness, the affidavit shall contain the particulars required by subdivision two of the preceding section. Unless the applicant shall also set forth in his affidavit that the facts upon which his application is grounded occurred or came to his knowledge too late to allow him to apply as prescribed in the preceding section, and that his application is made as soon as it reasonably could be after the knowledge of such facts, the postponement shall not be granted, except on the terms of the payment of the costs in the action for the term.

Code, s. 402; C. C. P., s. 228; R. C., c. 31, s. 57.

532. Counter affidavits as to continuance. It shall be competent in all civil cases only for the opposing side to controvert the allegations of fact in applications for continuance, and to offer counter affidavits to that end. And the judge shall not allow such continuance unless he shall be satisfied, after thorough examination of the evidence as aforesaid, that the ends of justice demand it. 1885, c. 394.

533. Order of business. The criminal calendar shall be first disposed of, unless, by consent of counsel, or for reasons satisfactory to the judge, particular criminal actions may be deferred. The issues on the civil calendar shall be disposed of in the following

order, unless, for the convenience of parties or the dispatch of business, the court shall otherwise direct:

1. Issues of fact to be tried by a jury.

2. Issues of fact to be tried by the court.

3. Issues of law.

Code, s. 403; C. C. P., s. 229.

534. Separate trials, when. A separate trial between a plaintiff and any of the several defendants may be allowed by the court, whenever, in its opinion, justice will thereby be promoted.

Code, s. 407; C. C. P., s. 230.

535. Judge to explain law; express no opinion on facts. No judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.

Code, s. 413; C. C. P., s. 237; R. C., c. 31, s. 130; 1796, c. 452.

536. Instructions in writing, when. Every judge, at the request of any party to an action on trial, made at or before the close of the evidence, before instructing the jury on the law, shall put his instructions in writing, and read them to the jury; he shall then sign and file them with the clerk as a part of the record of the action.

Code, s. 414; C. C. P., s. 238.

537. Written instructions in jury room, when. Whenever a judge shall put his instructions to the jury in writing either of his own will or at the request of any party to an action on trial, he shall, at the request of either party to the action, allow the jury to take his instructions with them on their retirement, and the jury shall return said instructions with their verdict to the court.

1885, c. 137.

538. Requests for instructions. Counsel praying of the judge instructions to the jury, shall put their request in writing entitled of the cause, and sign them; otherwise the judge may disregard them. They shall be filed with the clerk as a part of the record. Code, s. 415; C. C. P., s. 239.

539. Demurrer to evidence. When on trial of an issue of fact in a civil action, or special proceeding, the plaintiff shall have produced his evidence and rested his case, the defendant may move

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