Page:1862 Territory of Dakota Session Laws.pdf/107

90 deposit or deliver it in conformity with the direction of the court.

. 257. Issues arise 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: 1. Of law. 2. Of fact.

. 258. An issue of fact arises: 1. Upon a material allegation in the petition denied by the answer. 2. Upon a set-off or counter claim presented in the answer and denied by the reply. 3. Upon material new matter in the answer or reply, which shall be considered as controverted by the opposite party without further pleading.

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

. 260. Issues of law must be tried by the court, unless referred as provided in section two hundred and seventy-eight. 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.

. 261. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred, as provided in this code.