for the enforcement of a trust, and for an account by a trustee to the cestui que trust, 10 O. S. 198; nor an action to foreclose a mortgage, 2 H. 74; but where, in an action upon a note and mortgage given to secure its payment, judgment is asked upon the note and for the sale of the mortgaged property, either party may demand a jury trial upon any issue of fact which affects the judgment upon the note, 10 O. S. 437; see generally 12 Bull 261; 14 Bull 47. 2. Though numerous items of account and counterclaim are involved in the issue, 22 O. S. 372, and though the action is in the nature of a proceeding in chancery, 4 W. L. M. 153. 3. But in an action by persons claiming to be trustees of an incorporated religious society to recover possession of the real property of the society, an answer, denying that the plaintiffs and alleging that the defendants are such trustees, presents an issue which is properly triable by a jury, 12 O. S. 248. 4. When, by consent of both parties, a jury is waived, and the cause submitted to the court, neither party can subsequently withdraw his waiver, 1 C. S. C. R. 164; see 45 O. S. 356, 653; 46 Id. 27.

25131. What issues to be tried by court.

All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by a jury, or referred. [51 v. 57, 264; S. & C. 1021.]

SUBDIVISION II. TIME OF TRIAL.

5132. Trial docket. The clerk shall make a trial docket at least twelve days before the first day of each term, and the cases shall be set for particular days, in the order in which they stand on the appearance docket; a case in all its stages in the same court, and upon every docket or book, and all papers filed or issued therein, shall bear the appearance docket number; but the clerk shall not place upon the trial docket any case in which nothing remains to be done except to execute an order for the sale of real or personal property, and to distribute the proceeds as directed by the order; and if it becomes necessary, the case may be redocketed, on the application of either party, whereupon it shall stand in all respects as if it had remained on the docket. [55 v. 26, ? 306; S. & C. 1034.]

The court does not lose jurisdiction of a case because it was omitted from the docket by the clerk, 35 O. S. 648. The setting of cases for trial in the Hamilton County Common Pleas Court is not governed by this section, but by 2 464, 11 Bull 122, 123; see @ 5136.

5133. Judgment on default. When entered. In an action upon an account, or written instrument for the payment of money only, or in foreclosure, judgment may be entered, at any time during the term, after the de

fendant is in default for an answer; but the court may, for good cause shown, give further time for answer. [66 v. 42; ? 307.]

5320; 25 O. S. 635; see 3 C. C. R. 144.

? 5134. Order in which cases are to be heard. Cases in which there is an issue of fact, or in which damages are to be assessed, shall be tried in the order in which they stand on the trial docket, unless, by the consent of the parties, or by the order of the court, they are continued or placed at the heel of the docket, or, for good cause shown, may be especially assigned for trial or hearing out of their regular order, and actions for wages shall be first in order for trial; but the court may assign for trial the cases triable to a jury, in a series in the order in which they stand upon the docket, giving preference always to actions for wages, and cases not triable to a jury, in a series in like manner. All other cases shall be heard in the order in which they stand upon the trial docket, unless the court otherwise direct, and the court may, at any time, hear a motion or demurrer, and may, by rule, prescribe the time of hearing motions and demurrers. Provided, that in any subdivision where there are two or more judges, one of whom, for any cause, shall be disqualified to hear or try any of the causes upon such trial docket, such causes may be assigned for trial or hearing in a series in the order in which they stand upon the docket, by a judge not disqualified to try the same, and may be tried and heard in like order. [86 v. 109; 66 v. 42, ? 307.]

The granting or refusal of a continuance is a matter of judicial discretion, and not ground of error unless there is an abuse of discretion, 32 O. S. 173; 11 O. S. 691; 10 O. S. 598; 18 O. S. 438, 446; 26 O. S. 7. Cases on demurrer may, in the discretion of the court, be heard out of the order in which they stand on the trial docket, 26 O. S. 141 (1875); see 34 O. S. 124, 126.

25135. At what term actions triable. Actions are 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; when the issues are or should have been made up during a term, such action shall be triable at that term; and when the issues are or should have been made up either before or during a term of court, but after the period for the preparation of the trial docket of the

term, the clerk, if required by the court, shall place such actions on the trial docket of that term. [51 v. 57, § 308; S. & C. 1035.]

25136. Clerk to make copy of trial docket for bar. The clerk shall make a copy of the trial docket for the use of the bar before the first day of the term. [51 v. 57, ? 309; S. & C. 1035.]

SUBDIVISION

III. TENDER, AND OFFER TO CONFESS

JUDGMENT.

25137. Plea of tender of money before suit. If, in an action on a contract for the payment of money, the defendant answer and prove that he did tender payment of the money due on the contract, at any time before the commencement of the action thereon, and pay to the clerk, at any time before trial, the money so tendered, the plaintiff shall not have judgment for more than the money so due and tendered, without costs, and shall pay the defendant his costs. [51 v. 397, § 1; S. & C. 1140.]

A bank check is a good tender when the creditor objects only to the amount, 7 O. S. 257; and bank notes, where a party declared he would as soon accept them as specie, 8 0. 169; U. 8. treasury notes, 26 O. S. 334. A tender is unnecessary after refusal, W. 741; after repudiation of contract, 44 O. S. 156; 15 Bull 225; when it would be useless, 1 D. 128; 2 Id. 30; 1 Bull, 285; 3 Id. 114; 3 W. L. G. 149, 352; when the contract is denied, 1 C. S. C. R. 170; 11 O. S. 626; 2 W. L. M. 551; 1 H. 357, 532; see generally, condition precedent, tender of performance, 16 0.294; costs, 13 0. 131; W. 336; insurance, life, 15 Bull 225; lease, 6 O. 294; 8 W. L. J. 471; mortgage, 10 O. S. 339; notes, 34 0. 8. 67; 15 0. 200; place, 2 C. S. C. R. 568; 2 W. L. J. 401; pleading, 2 O. S. 10; 10. S. 225; 18 0. 532; 13 O. 107; purchase money, 40 O. S. 635; sale, 16 O. S. 472; 5 Id. 51; stock, 2 D. 261; 1 C. S. Č. R. 354; time, 18 0.532; usury, 11 O. 417; 14 O. S. 200; waiver, 6 0. 45; 7 O. S. 257.

25138. Plea of tender of article or labor before suit. If, in an action on a contract for the payment of any article or thing other than money, or for the performance of any work or labor, the defendant answer that he did tender payment or performance of such contract, at such time and place, and in such articles, work, or labor, as by such contract he was bound to pay or perform, and the court or jury find that he did tender, as alleged in his pleading, they shall, at the same time, assess the value of the property or labor so tendered, and thereupon judgment shall be rendered in favor of

the plaintiff for the sum so found, without interest or costs; but if the defendant forthwith perform his contract, or give to the plaintiff such assurance as the court may approve that he will perform the same within such time as the court may direct, judgment shall be rendered for the defendant; and in case any article so tendered is of a perishable nature, it shall from the time of such tender, be kept at the risk and expense of the plaintiff, provided the defendant take reasonable care of the same. [51 v. 397, 21; S. & C. 1140.]

Right to make subsequent tender when first is insufficient, 5 O. S. 51.

2 5139. Offer to confess judgment before action. Before an action for the recovery of money is brought against any person, he may go into the court of the county of his residence, or of that in which the person having the cause of action resides, which would have jurisdiction of the action, and offer to confess judgment in favor of such person for a specified sum, on such cause of action; whereupon, if such person, having had such notice that the offer would be made, of its amount, and of the time and place of making it, as the court deems reasonable, fail to attend to accept the confession, or if he attend, and refuse to accept it, and afterwards commence an action upon such cause, and fail to recover more than the amount so offered to be confessed, and the interest thereon from the date of the offer, he shall pay all the costs of the action. [51 v. 57, 499; S. & C. 1095.]

25140. Offer to confess out of court. The defendant in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff, or his attorney, an offer in writing to allow judgment to be taken against him for the sum specified therein; if the plaintiff accept the offer, and give notice thereof to the defendant, or his attorney, within five days after service of it, the offer, and an affidavit that the notice of acceptance was delivered in the time limited, may be filed by the plaintiff, or the defendant may file the acceptance, with a copy of the offer, verified by affidavit; in either case the offer and acceptance shall be noted in the journal, and judgment rendered accordingly; if the

notice of acceptance be not given in the period limited, the offer shall be deemed withdrawn; and if the plaintiff fail to obtain judgment for more than was offered by the defendant, he shall pay the defendant's costs from the time of the offer. [51 v. 57, 2 493; S. & C. 1094.]

25 O. S. 301. The "offer to compromise" can not properly be made in an answer, 18 O. S. 373.

25141. Offer to confess in open court. The defendant in an action for the recovery of money may offer in court to confess judgment for part of the amount claimed, or part of the causes involved in the action; whereupon, if the plaintiff, being present, refuse to accept such confession of judgment, in full of his demands against the defendant in the action, or, having had such notice that the offer would be made, of its amount, and of the time of making it, as the court deems reasonable, fail to attend, and, on the trial, do not recover more than was so offered to be confessed, and the interest thereon from the date of the offer, such plaintiff shall pay all the costs of the defendant incurred after the offer was made. [51 v. 57, 2498; S. & C. 1095.]

See 26581; 18 O. S. 373. It is not sufficient to merely place a written offer on file with the papers in the case, though the plaintiff may have notice that such offer has been so made, 12 O. S. 624. The section is applicable to justices, 15 O. S. 511. An offer to confess judgment before a justice of the peace is available to defendant on appeal, 15 O. S. 511; 11 O. S. 554, and prevents the recovery of future costs, 3 O. 384; 11 O. S. 554.

5142. Such offers not to affect the trial. An offer made as provided in the three preceding sections shall not be deemed an admission of the cause of action, nor of the amount to which the plaintiff is entitled; nor shall it be a cause of continuance of the action, or a postponement of the trial, or given in evidence, or mentioned on the trial. [51 v. 57, 493, 494, 498, 499; S. & C. 1094, 1095.]

5143. Provisions made applicable to offer made by plaintiff. The provisions of this subdivision shall be applied, so far as they may fairly be made applicable, to a tender or offer made by the plaintiff; and to the same extent, the same provisions may, in the discretion of the court, be applied to one or more of several causes of action, counter-claim, or set-off, in which case the court shall make such order as to costs as it deems proper.