When it appears from inspection of the record that the court below refused to put its charge in writing, at the request of one of the parties made in apt time, a new trial will be granted by the supreme court. Drake v. Connelly, 107-463.

The charge must be put in writing if requested in apt time. Lowe v. Elliott, 107-718.

Sec. 415. Counsel to put their prayers for instruction in writing. C. C. P., s. 239.

Counsel praying of the judge instructions to the jury, shall put their requests 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.

Request to charge must be in writing, and at or before close of evidence.— Prayers for instructions should be asked at the close of the evidence. They can only be asked afterwards by leave of the court. Powell v. Railroad, 68-395; Taylor v. Plummer, 105-56; Marsh v. Richardson, 106-548; Grubbs v. Insurance Co., 108-472; Davis v. Council, 92-725; State v. Rowe, 98-629.

Prayers for instruction must be in writing. Lowe v. Elliott, 107-718; Pleasants v. Railroad, 95-195.

A party only has the right to ask for special instructions before the case is given to the jury, but if after the jury have retired, the court should recall them and instruct them further, the defendant can except if the charge is incorrect. State v. Barbee, 92-820.

It is too late to ask an instruction that there was no evidence to sustain a verdict on a certain issue after the verdict has been rendered. Owens v. Phelps, 95-286.

If a party desires the entire testimony, or any specific part thereof, recapitulated to the jury, he should make the request in apt time and before verdict. Boon v. Murphy, 108-187.

Oral prayers for instructions.-The judge may disregard oral prayers for special instructions. State v. Horton, 100-443.

Instructions need not be in the very words asked.—If a prayer for instruction is given substantially in the charge, though not in the very words asked, it is sufficient. Burton v. March, 51-409; State v. Brantley, 63-518; State v. Scott, 64-586; Brink v. Black, 77-59; State v. Boon, 82-637; State v. Hinson, 83-640; Patterson v. McIver, 90-493; State v. Anderson, 93-732; McDonald v. Carson, 94-497; Clements v. Rogers, 95-248; State v. Jones 97-469; Carlton v. Railroad; 104-365; Bethea v. Railroad, 106-279; Everett v. Williamson, 107-204; Thompson v. Telegraph Co., 107-449; State v. Brabham, 108-793.

A judge need not give the instructions in the very words asked, even when correct in law. But he shall declare the law as applicable to the facts in proof, and to any reasonable inference from them. Rencher v. Wynne, 86-268.

A judge, in granting a prayer for certain instructions, may add thereto any explanation as to the law bearing upon the facts embraced in the instructions. Overcash v. Kitchie, 89-384.

The judge is not required to give instructions asked, and to which the party is entitled, in the words cr in the order in which they are presented; it is sufficient if they are substantially given. State v. Brewer, 98-607; State v. McNeil, 92-812; Newby v. Harrell, 99-149.

If the judge, while not giving a special instruction in the very words, puts the defence raised therein distinctly to the jury, there is no cause for complaint. Conwell v. Mann, 100-234.

Instructions properly refused. It is not error in a judge to refuse to charge abstract principles of law which have no application to the case. State v. Speaks, 94-865; State v. Hunter, 94-829; Staton v. Mullis, 92623; State v. Jones, 97-469; Carpenter v. Tucker, 98-316; Leach v. Linde, 108-547; State v. Smith, 100-550.

It is not error for the judge to refuse to charge upon a hypothetical case which does not appear in the evidence. State v. Anderson, 93-732; Leak v. Covington, 99-559; State v. Lambert, 93-618.

It is not error for the court to refuse a prayer for instructions, not warranted by any view of the evidence. State v. Starnes, 94-973; State

v. Gooch, 94-987.

It is not error for the court to refuse to charge the jury upon a point not raised by the pleadings, and upon which there is no controversy. Lewis v. Railroad, 95-179.

Where it was a disputed question in the case whether a mortgagor lived in one county or the other, a prayer for instructions which assumes that he resided in one of the counties, was properly refused. Weisenfield v. McLean, 96-248.

It is not error for the trial judge to refuse to charge that certain acts or omissions of the plaintiff amount to contributory negligence, when the evidence in regard to them is conflicting. Scott v. Railroad, 96-428. It is not error for the trial judge to refuse to tell the jury that the witness had testified to certain facts, when his notes do not show any such testimony, and he has no recollection of it. It is entirely proper for him to leave the matter to the jury to remember what the evidence was. Spence v. Baxter, 95–170.

Where the evidence presents the case to the jury in two aspects, it is not error in the trial judge to refuse a prayer for instructions, which would present the case to the jury only in one aspect. Porter v. Railroad, 97-46.

It is not the duty of the judge to charge the jury upon a single selected fact, nor is he bound to charge in the language ask for in a special instruction. Michael v. Foil, 100-178.

A prayer for instructions to the jury from the defendant that upon the whole evidence the plaintiff is not entitled to recover, is not proper under the present system of practice. Now the jury do not find for the one party or the other, as formerly, but respond to certain issues, and upon their findings on these issues, the rights of the parties depend. McDonald v. Carson, 94-497.

Instructions improperly refused.-When a party prays for instruction to which he is entitled, it is error to refuse it. The court, however, is not required to adopt the words of the instruction asked, but it is error to change its sense, or to so qualify it as to weaken its force. Brink v. Black, 77-59.

Where a defendant asks a special instruction to the jury upon an aspect of the case which is presented by the evidence, which the court does not give, it is error, and entitles the defendant to a new trial. State v. Gaskins, 93-547.

Where, in an action against a telegraph company for damages for failure to send a message in time, the court failed to instruct the jury, in response to a prayer of defendant, whether or not they would be at liberty to give the plaintiff damages for mental suffering, unaccompanied by any other injury, or whether, if damages could not be assessed

for that cause, the testimony tended to show any concomitant wrong to the person: Held, to be error. Thompson v. Telegraph Co., 106-549.

It must appear that a proper prayer was granted.-When a party asks a prayer for instruction, to which he is entitled, it must appear that it was given either as asked or was substantially given in the charge, if the appellant excepted to the refusal. McFarland v. Improvement Co., 107-368.

A party cannot except, when.-A party cannot except to an instruction asked by himself. Buie v. Buie, 24-87; Moore v. Parker, 91-275; Thompson v. Telegraph Co., 107-449; Greenleaf v. Railroad, 91-33.

Effect of certain prayers. When the judge is requested to charge that there is no evidence of a fact in issue, the evidence most favorable to the opposite party must be considered alone, and if there is any evidence at all to establish such fact the charge must be refused. State v. Horne, 92-805.

Where a party asks the court to charge the jury that, if the other party has not satisfied them by a preponderance of evidence, they should find a certain way, it is an admission that there is some evidence to go to the jury to prove the fact. Owens v. Phelps, 95-286.

Fuller or more specific instructions must be asked for, if desired.-On the trial of an action, if either party desires fuller or more specific instructions than the court has given, it is his duty to ask for them. Morgan v. Smith, 77-37; King v. Blackwell, 96–322.

The trial judge is not required, in the absence of a prayer for special instructions, to present the evidence in his charge in every possible aspect. If the parties desire more specific instructions, they must ask for them at the proper time. Morgan v. Lewis, 95-296; Boon v. Murphy, 108-187; Willey v. Railroad, 96-408, and cases there cited.

Refusal of prayer deemed excepted to.-The refusal or failure of the judge to give an instruction specially prayed in writing, and in apt time, is "deemed excepted to." McKinnon v. Morrison, 104-354; Taylor v. Plummer, 105-56.

See 409, 412 (3) and 413, ante.

SECTION.

CHAPTER FOUR.

TRIAL BY THE COURT.

416. Trial by jury, how waived. 417. On trial by the court, judgment, how given.

Sec. 416.

SECTION.

418. Exceptions; how and when taken.

419. Proceedings upon judgment on issue of law.

Trial by jury, how waived. C. C. P., s. 240.

Trial by jury may be waived by the several parties to an issue of fact, in actions on contract, and with the assent of the court in other actions in the manner following:

(1) By failing to appear at the trial;

(2) By written consent, in person or by attorney, filed with the clerk;

(3) By oral consent, entered in the minutes.

Trial by jury, how waived.-There are three modes of waiving a jury trial: I, by default; 2, by written consent; and 3, by oral consent entered on the minutes of the court.

When the record shows that a reference has been made, it imports that every condition has been complied with, necessary to make it effectual, and confers upon the court all the rights and duties conferred upon a jury. In the exercise of this power the court below may revise and correct its own findings, and to that end may invoke the aid of a jury in matters of doubt and conflicting evidence, and it may direct a jury to find either a general or special verdict, upon all or any of the issues, or upon any particular questions of fact, all of which findings shall be written and entered on the record. Armfield v. Brown, 70-27. In injunction proceedings, if the allegations of the complaint are not denied by the answer, it is not error for the judge to refuse to place the cause on the docket for a jury trial. Hettrick v. Page, 82-65; Jones v. Boyd, 80-258.

Demurrer to the evidence withdraws a cause from the jury. Nelson v. Whitfield, 82-46.

A trial by jury is waived by a reference by consent. Grant v. Reese, 82-72.

A reference to hear and determine all the matters in controversy, is a waiver of a trial by jury. University v. Lassiter, 83-38.

After the transfer of the cause to the civil issue docket, an agreement that the judge may find the facts, or, the facts being agreed, may pronounce judgment, cures all irregularities. Foreman v. Hough, 98-386. See 398, ante, and cases cited.

Waiver, by whom.-The consent to waive a jury trial may be made by counsel without special authority. Stevenson v. Felton, 99-58.

It is competent for the attorney and guardian ad litem to waive a jury trial for infants, even where they have not been regularly served with summons. White v. Morris, 107-92.

Where parties agree to a particular mode of trial, they are bound by it. Runnion v. Ramsay, 93-410.

Where, by consent, the court tries the issues of fact.-When the parties consent that the court may try issues of fact, it confers upon the judge all the rights and duties of a jury. He may revise and correct his own findings and invoke the aid of a jury, and may direct a general or special verdict upon all or any issues or upon any question of fact, all of which findings shall be written and entered of record. Armfield v. Brown, 70-27.

Where a jury is waived, and the judge tries the facts, errors committed by him in the reception or rejection of evidence are reviewable upon appeal. The admission of irrelevant testimony is not ground for a new trial if it is apparent that it was harmless. Puffer v. Baker, 104-148.

When a trial by jury is waived, the court should find the facts and state its conclusion separately, in writing, and then enter judgment in accordance therewith. But, where the court simply responded formally to the issues, and directed judgment, to which no exception was taken and no assignment of error was made, the judgment will be affirmed. Parks v. Davis, 98-481.

Where a trial by jury having been waived, the court adopted the findings of fact and conclusions of law of a referee to whom the case had been referred by consent, and also responded to issues framed by itself, while this was not a formal compliance with the statute, yet, if from the record it can be seen what facts were found and what conclusions the court made thereon, the judgment will be affirmed. Silver Valley Co. v. Baltimore Smelting Co., 99-445.

If the judge finds the facts, and there be no objection, it must be presumed it was with consent of all parties. White v. Morris, 107-92.

Judge can only pass upon issues of fact when a jury trial is waived. When an issue of fact is raised, involving the merits of the controversy, and the defendant, in apt time, demands a jury to try that fact, it is error in the presiding judge to refuse such demand and try the issue himself. Isler v. Murphy, 71-436.

The judge can only pass upon issues of fact when a jury trial is waived as required by this section. Chastain v. Martin, 81-51; Leggett v. Leggett, 66–420.

Where issues of fact are raised by the pleadings, it is error for the judge to decide the action without submitting these issues to a jury, unless both sides consent that he shall decide the whole case, both on the law and the facts. Wilson v. Bynum, 92-717.

Findings reviewed, when.-The findings and conclusions of the judge, in a case under this section, will not be reviewed except on exceptions aptly taken, or when error is distinctly pointed out. Chastain v. Coward, 79-543

The supreme court will not review the finding of the court below on the ground that it was against the weight of the testimony. Under this section, such finding is conclusive as to issues of fact, subject only to the exception (1) that there was no evidence to support it; (2) that incompetent evidence was admitted; (3) that some material fact was left out of consideration. Fertilizer Co. v. Reams, 105–283; Branton v. O'Briant, 93-99.

New trial, if granted, must be by a jury, unless again waived.-Where a trial by jury is waived, and the facts and the law are found by the judge, and his conclusions of law are reversed on appeal, the.court below cannot proceed to judgment on the facts found in the first trial, but the case must be submitted to a jury, unless otherwise agreed by the parties. Isler v. Koonce, 83-55; Benbow v. Robbins, 72-422.

Sec. 417. On trial by the court, judgment, how to be givėn. C. C. P., s. 241.

Upon the trial of a question of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law, separately; and, upon a trial of an issue of law, the decision shall be made in the same manner, stating the conclusions of law. Such decision shall be filed with the clerk during the court at which the trial takes place. Judgment upon the decision shall be entered accordingly.