so offered to be confessed, he shall pay all costs of the action; and on the trial thereof, the offer shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor to be given in evidence. (390.)

I. This section only refers to offers to confess before suit. Horner v. Pilkington, II Ind. 440.

2. An offer to confess, made before a Justice, continues in force on appeal.—Lewis v. Morrison, 10 Ind. 394.

[1881 S., p. 240. In force September 19, 1881.]

516. Action-When for issue and trial. 367. Every action shall stand for issue and trial at the first term after it is commenced, when the summons have [has] been served on the defendant ten days, or publication has been made for thirty days before the first day of the term: Provided, however, That when the complaint is filed, whether before or during any term of Court, the plaintiff may fix the day during such term, by indorsement thereof upon the complaint at the time of filing the same, on which the defendant shall appear; which day, when so fixed, shall be stated in the summons when issued, and the action shall be docketed in its order. And if summons shall be personally served ten days before such day, or publication shall be made three weeks, thirty days before such day, such action shall thereupon stand for issue and trial at such term, and the Court shall have jurisdiction to hear and determine such action, as if summons had been served, or publication made before the first day of the term, as herein provided. And if at any time, after the filing of the complaint, it shall be found that any party to the action has not been properly notified, the plaintiff may file with the Clerk, or indorse on the complaint, a written request for such notice to be given, naming therein the day of the pending or subsequent term on which such party is required to appear to the action; and summons shall be issued or publication made accordingly in the proper case, as above provided. And if summons shall be personally served ten days before such day, or publication made three weeks successively thirty days before such day, such case shall thereupon stand for issue and trial at such term, and the Court shall have jurisdiction to hear and determine such action as if summons had been served or publication made before the first day of the term, as herein provided; and it is also provided, that the provisions of this act shall apply to all suits and proceedings for divorce, the same as all other actions. [As amended by act in force June 5, 1883. S. 1883, p. 199.

I. Sundays are included in computing the ten days.—Womack v. McAhren, 9 Ind. 6. 2. A summons returnable on a day beyond the next term is a nullity. - Briggs v. Sneghan, 45 Ind. 14.

3. When a default is ordered, it will be presumed that the service was regular.— Stevens v. Helm, 15 Ind. 183.

4. A default will not be set aside, unless it be shown that there is a meritorious defense.- Id.

517. Trial defined. 371. The trial is a judicial examination of the issues, whether of law or of fact, in an action. (319.)

1. Trial is a judicial examination of the issue. Evidence which is foreign to the issue must be disregarded, although admitted without exception or objection.- Boardman v. Griffin, 52 Ind. 101; Denbo v. Wright, 53 id. 226.

518. Order of trial. 373. The trial in each action shall be in the order in which it stands upon the docket, unless the Court, for good cause shown, shall direct otherwise. (321.)

519. When jury shall appear- Order of trials. 431. The petit jury shall be summoned to appear on the first day designated for the trial of criminal business, and not before. After the beginning of the trial term, the Court shall proceed to try the cases in their regular order; which trials shall not be delayed or interrupted by the making up of issues. The Judge shall, as far as practicable, so arrange the cases to be tried by the Court that the same may be tried after the discharge of the jury; and such jury shall be immediately discharged when the issues requiring it shall be disposed of.

520. Jury from regular panel. 355. In any civil action where the parties are entitled to a trial by jury, and either party shall demand such trial, the Sheriff shall call a jury from the regular panel, except as hereinafter provided. (307.)

1. A jury must be composed of twelve persons. It will be presumed from the record that a jury was of that number. Trial by a less number, not objected to, is valid.- Dunham v. Hudson, 4 Ind. 501.

2. The competency of jurors will be presumed.-Bradford v. State, 15 Ind. 347. The objection that a juror is not a voter must be made and shown before he is sworn, or it is waived.-Patterson v. State, 70 Ind. 341.

3. A jury is not demandable in divorce.- Musselman v. Musselman, 44 Ind. 106. 4. The jury must be re-sworn, if issues are changed after they are impaneled.Ostrander v. Clark, 8 Ind. 211.

5. A jury may agree upon a general verdict, separate, return the same, ward retire to answer interrogatories.-Bush v. Pedigo, 63 Ind. 479.

and after

6. When the evidence as to the competency of a juror is conflicting, the decision of the Court stands.- Coryell v. Stone, 62 Ind. 307.

521. Number of jurors. 356. The number of jurors to try a civil action shall not exceed twelve, nor be less than three. The parties may determine the number of jurors by agreement; and in case of their disagreement, the number shall be twelve. (308.)

522. Special jury. 432. The Court shall have the power, when the business thereof requires it, to order the impaneling of a special jury for the trial of any cause.

523. Jury by agreement. 357. The parties may agree upon the jurors to compose a special jury, and notify the Court thereof; and the Court shall, thereupon, direct the Sheriff to impanel such special jury, if it can be done without unreasonable delay of the cause. (309.)

524. Struck jury, by consent. 358. When both parties desire it, the Court may direct the Sheriff to summon eighteen competent jurors, or a less number; and the plaintiff first, and then the defendant, shall strike out one juror in turn, until each has struck off six or more; and the

remaining jurors shall try the cause. Or the parties, when they consent, upon being furnished with a list of jurors to be summoned, may exercise the right to strike out any part of the names before the jurors are summoned, and the remaining jurors only shall be summoned. (310.)

525. Struck jury, upon notice. 359. Whenever a struck jury shall be deemed necessary for the trial of any civil cause in any Circuit or Superior Court of this State, it shall be lawful for either party to file with the Clerk a demand for such jury; when it shall be the duty of such Clerk to give four days' notice to both parties, or to their attorneys, of the time of striking the same. At the time designated, said Clerk shall attend at his office, and, in the presence of the parties or of such of them as shall attend for that purpose, shall select from the number of persons qualified to serve as jurors within the county, forty such persons as he shall think most indifferent between the parties and best qualified to try such cause; and then the party requiring such jury, his agent or attorney, shall first strike off one of the names, and then the opposite party, his agent or attorney, another, and so on, alternately, until each shall have struck out twelve. If either party shall not attend in person or by attorney, it shall be the duty of the Clerk to strike out for the party not attending. When each party shall have stricken out twelve names as aforesaid, the Clerk shall make a fair copy of the names of the remaining sixteen persons, and, immediately thereafter, issue process, directing the Sheriff of the county to summon said sixteen persons, as jurors struck for the trial of such cause, stating the day for which it is set for trial; and such Sheriff shall, thereupon, summon accordingly. But, in all cases, it shall be necessary to strike such jury at least five days previous to the day at which said case is set for trial on the docket, and two days' service of the process by the Sheriff shall be held sufficient. And, upon the trial of the cause, the jury so struck shall be called as they stand upon the panel, and the first twelve of them who shall appear, and are not challenged for cause or set aside by the Court, shall be the jury, and shall be sworn to try said issue: Provided, however, That, unless at least one-half of such struck jury shall have been summoned and shall be in attendance when such cause is called for trial, the case shall be tried by the regular petit jury, as other cases. 526. Selector, when Clerk interested. 360. If the Clerk of such Court shall be interested in the cause, or related to either of the parties, or do not stand indifferent between them, in every such case the Judge entitled to try said cause may, in vacation or term time, name some judicious and disinterested person to strike the jury, and to do and perform all things required to be done by such Clerk relating to the striking of such jury.

527. Fees for striking. 361. The party requiring such struck jury shall pay the fees for striking the same, and one dollar and twenty-five cents each day for each juror so attending, and shall not have an allow ance therefor in the taxation of costs, unless the Court shall be of opinion that the cause required such special jury; in which last case, the extraor dinary expense shall be taxed in the bill of costs. If the Court, upon motion of either party, shall have ordered a struck jury, then the costs thereof shall abide the event of the suit.

528. Struck jury-Continuance, if parties consent. 362. A struck jury for the trial of the cause at any term of the Court may be

continued with the continuance of the cause, and be summoned in as jurors at a subsequent term, provided both parties consent thereto, but not otherwise.

529. Challenge for interest. 363. It shall be sufficient cause for challenge to a juror, that he is interested in another suit, begun or contemplated, involving the same or a similar matter. (311)

I. The relationship between a party and a juror, though unknown to both, disqualifies the juror, within the degree of second cousin.— Hudspeth v. Herston, 64 Ind. 133. 2. If a party accept a juror without question as to whether he be a householder or freeholder of the county, he waives the right of objection on these grounds.- Estep v. Waterous, 45 Ind. 140.

3. The right to challenge a juror peremptorily remains open until he is sworn.— Munly v. State, 7 Blackf. 593; Morris v. State, id. 607; Jackson v. Pittsford, 8 id. 194. 4. The right of challenge for cause can not be exhausted.- Alexander v. Dunn, 5 Ind. 122.

5. That a juror is related to the adverse party by marriage with his niece is a good cause of challenge.-Trullinger v. Webb, 3 Ind. 198.

530. Oath of jurors.

364. Before the commencement of the trial an oath must be administered to each juror, that he will well and truly try the matter in issue between the parties, and a true verdict give, according to law and evidence.

(312.)

531. Peremptory challenges. 365. In all cases where the jury consists of six or more persons, each party shall have three peremptory challenges. (313.)

I. "Each party" in this section means each side, not each plaintiff or defendant of co-parties. Snodgrass v. Hunt, 15 Ind. 274.

532. Calling talesmen. 366. When the regular panel is exhausted, or is insufficient from any cause, the Sheriff shall call the bystanders, or fill the jury in such a manner as the Court may direct. (314)

533. Manner of trial. 376. When the jury has been sworn, the trial shall proceed in the following order, unless the Court, for special reasons, otherwise directs:

First. The party upon 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 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, which may then be rebutted.

Fourth. 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.

Fifth. When the argument of the cause is concluded, the Court shall give general instructions to the jury, which shall be in writing, and be numbered and signed by the Judge, if required by either party.

Sixth. 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 instructions with a modification, 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 asked for, or as modified, or to the modification. All instructions given by the Court must be signed by the Judge, and filed,

together with those asked for by the parties, as a part of the record. The instructions shall not be entered at large on the final record, unless either party may wish to remove the cause to a superior Court. (324.)

1. The party on whom rests the burden of proof is entitled to open and close the case upon the trial.- Lynam v. Buckner, 60 Ind. 402; Heilman v. Shanklin, id. 424. 2. One who alleges a negative material to his case is bound to prove it.— Nash v. Hall, 4 Ind. 444.

3. The order in which evidence may be introduced is generally in the discretion of the party offering it; but the Court may, for cause, control it. Nordyke v. Shearon, 12 Ind. 346; Goings v. Chapman, 18 id. 194.

4. The request to give instructions in writing must be made commences. Chance v. G. R. Co., 32 Ind. 472.

before the argument

5. After request to instruct in writing, it is error to instruct orally, or both in writing and orally.- Sutherland v. Venard, 34 Ind. 390; Hardin v. Helton, 50 id. 319; Bosworth v. Barker, 65 id. 595.

6. The Court is bound to instruct, unless the parties agree to dispense with instructions.- Welch v. Watts, 9 Ind. 115.

534. Special instruction before argument. 377. Upon the trial of any civil cause before a jury in any Circuit or Superior Court of this State, any party thereto, having an interest in the result of such trial, may, before the commencement of the argument to the jury, tender to the Court instructions in writing, properly numbered, to be given to the jury, and require the Court to indicate, before the argument, such as will be given, by writing opposite each the words "given," "given as modified by the Court," or "refused." And if the Court desires, it may hear argument thereon by the respective counsel, before acting on the instructions tendered. And thereupon, during the argument to the jury, any instructions so indicated to be given, may be read to the jury as the law of the case; and the Court shall give the same to the jury as the law when such jury is instructed by the Court. And the Court may of its own motion, and shall upon application of either party, also before the commencement of the argument, lay before the parties any instructions properly numbered, which it will give to the jury; and thereupon the same may be read by any one as the law, while making an argument to the jury: Provided, however, The Court may give to the jury such other instructions, with those already approved, at the close of the argument, as may be necessary to fully present the law to the jury and secure the ends of justice.

535. Exceptions to instructions. 378. A party excepting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to write on the margin, or at the close of each instruction, "refused, and excepted to," or given, and excepted to "; which memorandum shall be signed by the Judge, and dated. (325.)

1. A party can not assign as error an instruction in his own favor.— Roots v. Tyner, 10 Ind. 87; Cobb v. Krutz, 40 id. 323.

2. Nor can he complain that an instruction asked for by the adverse party was refused. Columbus, etc., R. R. Co. v. Powell, 40 Ind. 37.

3. The Court is not bound to instruct upon an abstract question of law, or one of natural philosophy or physics.-Huntington v. Colman, 1 Blackf. 348; Rapp . Grayson, 2 id. 130.

4. Instructions given will be presumed correct, if possible. Instructions asked will not be considered, if those given are not in the record.-Myers v. Murphy, 60 Ind. 282; Coryell v. Stone, 62 id. 307; Higbee v. Moore, 66 id. 263.

5. The exception to instructions, if written thereon, must be signed by the party or his attorney.— Sutherland v. Hankins, 56 Ind. 343.