We, the jury in this action, find for the plaintiff, that he is entitled to a return of the property described in the complaint [or, describe the property recovered], and assess the value of said property at . . . dollars, and the plaintiff's damages, by reason of the detention [or, taking and withholding] of said property, at .. dollars.

We, the jury in this action, find for the defendant, that he is entitled to a return of the property described in the complaint [or, describe the property], and assess the value thereof at the sum of . . . dollars, and the defendant's damages, by reason of the taking, withholding, and detention of the same, at the sum of . . . dollars.

We, the jury in this action, find for the plaintiff, that he is the absolute owner of the personal property described in the complaint [or, that he has a qualified ownership in the property described in the complaint, by virtue of a levy thereon made by him as sheriff under an execution held by him against the property of . . ., or otherwise briefly describe the qualified title]; that said property is of the value of . . . dollars [or, is of the following value: here name each article and give its value separately]; and we assess the plaintiff's damages for the wrongful detention of said property at . . . dollars.

Dated..., 19. .

O. P., Foreman.

§ 1281. General verdict for plaintiff in ejectment.

[TITLE.]

Form No. 406.

We, the jury in this action, find for the plaintiffs, that they are the owners of an estate in fee simple [or, an estate for the life of A. B., or otherwise specify the particular estate and its duration] in the lands described in the complaint, and have a right to recover the possession of the same, and we assess their damages for the unlawful withholding thereof at the sum of . . . dollars, and [if special damage be claimed in the complaint] we further assess the plaintiff's damages for waste committed thereon at the sum of . . . dollars.

Dated. . ., 19. .

O. P., Foreman.

[If the plaintiff had title at the time the action was commenced, which has terminated pending the action, the verdict should state both facts and the date of the termination, and assess damages only to that date.]

§ 1282. Separate verdict in ejectment for defendant's improvements, when plaintiff recovers the land.

We, the jury in this action, find the defendant entitled to recover, upon his counterclaim herein, the value of the improvements made and taxes paid by him upon the said premises, and assess the amount thereof at . . . dollars.

Dated . . ., 19 . .

O. P., Foreman.

[This is to be returned with the general verdict for the plaintiff.]

§ 1283. Separate verdict in ejectment for a part of the premises only.

We, the jury in this action, find for the plaintiff, that he is the owner in fee simple [or, otherwise describe the estate as in preceding forms] in and to a part of the premises described in the complaint, to-wit: [here describe the part recovered]; and we assess his damages [as in preceding forms]; and as to the remainder of the premises described in the complaint, we find for the defendant.

Dated. . ., 19..

O. P., Foreman.

We, the jury in this action, find the following special verdict

in said action:

Question 1. [Insert question.]

Answer. [Insert answer.]

Question 2. [Insert question.]

Answer. [Insert answer.]

[Proceed in the same manner with all of the questions.]

§ 1285. General verdict, with findings on particular questions. Form No. 410.

[TITLE.]

We, the jury in this action, find for the plaintiff and assess his damages at . . . dollars [or, find for the defendant]; and we further find in answer to questions submitted by the court as follows:

Question 1. [Insert question.]

Answer. [Insert answer.]

[Proceed as above with remaining questions.]

§ 1286. Notice of motion for trial of issues of fact in equitable case, or issues not made by the pleadings, before a jury.

Take notice, that upon the pleadings in this action and upon the proceedings on file [and upon the affidavit of G. H., herewith served,] the undersigned will move the . . . court at . . ., on the... day of . . ., 19.., at . . . o'clock A. M., or as soon thereafter as counsel can be heard, for an order that the following issues be submitted to a jury for trial, viz.:

I. [State issues in succinct form.]

[DATE.]

[ADDRESS.]

G. H., Attorney for Plaintiff.

§ 1287. Order for trial of issues in equitable action before jury.

[TITLE.]

Form No. 412.

The motion of the plaintiff herein for an order submitting certain issues to a jury for trial having come on to be heard upon the pleadings herein [and the affidavit of G. H.], and [state any further affidavits or papers used on the motion], after hearing G. H., Esq., for the motion, and J. K., Esq., in opposition:

Ordered, that the following issue between the parties be tried by a jury at the . . . term of the said court, to be held at . on the . . . day of [or, at the present term of this

court], viz.:

19

[State issue clearly and succinctly.] By the Court:

O. P., Judge.

CHAPTER XLVIII.

TRIAL BY A REFEREE.

2

§ 1288. In general.-A reference may be ordered, upon the agreement of the parties, filed with the clerk or entered in the minutes,-1. To try any or all of the issues in an action or proceeding, whether of fact or of law, and to report a finding and judgment thereon; 2. To ascertain a fact necessary to enable the court to determine an action or proceeding. Under Colorado practice, a reference may be ordered by the court on the stipulation of the parties to try all issues of fact as well as of law, and to report findings and judgment thereon. The court may appoint one or more referees to examine the accounts made in probate proceedings and report thereon, subject to confirmation, when the same are complicated and contested by the heirs, and may allow a reasonable compensation to the referees, to be paid out of the estate. The consent of a party to an order of reference must be in writing, or entered on the minutes.* The court has no power, when either of the parties object, to order a reference with directions to the referee to report a judgment. Consent may be given by oral consent, in open court, entered on the minutes." An order of court is necessary to constitute a reference, and no reference is good, as such, without an order. In

1 Cal. Code Civ. Proc., § 638; N. Y. Code, § 1011; Ohio Code, § 281; Or. B. & C. Codes, § 160; Nev. Comp. Laws, par. 3279, § 184; Wash. Bal. Codes, §§ 4968, 5033; Idaho Rev. Codes, 4414; Ariz. Laws, par. 184; 2 Till. & Shear. Pr. 516. See Faulkner v. Hendy, 103 Cal. 20, 36 Pac. 1021; Von Schmidt v. Widber, 99 Cal. 515, 34 Pac. 109.

2 Sartor v. Strassheim, 8 Colo. 185, 6 Pac. 215.

8 Cal. Code Civ. Proc., § 1636; Alaska Codes, pt. 4, ch. 86, §§ 859, 862, 871; Ariz. Civ. Code, § 1870; Idaho Rev. Codes, § 5601; Mont. Rev. Codes, § 7648; Nev. Comp. Laws, § 2992; N. Mex. Comp. Laws, § 2005; Utah Rev. Stats., § 3947; Wash. Bal. Codes,

§ 6330; Wyo. Rev. Stats., § 4724.

4 Smith v. Polack, 2 Cal. 92. This decision applies only to cases at common law. Smith v. Rowe, 4 Cal. 6.

5 Williams v. Benton, 24 Cal. 424; Hendy Machine Works v. Pacific etc. Construction Co., 99 Cal. 421, 33 Pac. 1084. See Sieber v. Frink, 7 Colo. 150, 2 Pac. 901.

6 Bates v. Vischer, 2 Cal. 355; People v. McGinnis, 1 Park. Cr. Rep. 387; Keator v. Ulster Plank-Road Co., 7 How. Pr. 41; Bloore v. Potter, 9 Wend. 480; Leaycroft v. Fowler, 7 How. Pr. 259. See Diddell v. Diddell, 3 Abb. Pr. 167, and note, p. 171.

Heslep v. San Francisco, 4 Cal. 4; Bonner v. McPhail, 31 Barb. 106.