dar for a general or special term, if not tried or heard at such term, shall remain upon the calendar from Court to Court, until finally disposed of.

N. Y. Code, § 256.

§ 157. Parties may bring issue to trial.

Either party may bring the issue to trial, or to a hearing, and in the absence of the adverse party, unless the Court for good cause otherwise direct, may proceed with his case, and take a dismissal of the action, or a verdict, or judgment, as the case may require.

1. Issue must be raised between all the parties.-An action cannot regularly be brought to trial until it is in such a situation that a final judgment can be rendered between all the parties. It cannot be had in sections without leave of Court. Ward v. Dewey, 12 How. Pr. R. 193.

§ 158. Motions to postpone a trial for absence of testimony, requisites of.

A motion to postpone a trial, on the ground of the absence of evidence, shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The Court may also require the moving party to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed.

1. Continuance discretionary with the Court.-The granting or refusing a continuance rests in the sound discretion of the Court. Musgrove v. Perkins, 9 Cal. 211.

2. The granting or refusing a continuance rests in the sound discretion of the Court below; and even when the facts show that the action of the Court below approached nearly to an arbitrary exercise of its discretion, that action will not be reviewed, unless there has been a motion for a new trial, and the application supported by the affidavits of the absent witness, if such affidavits can be obtained; or if not, then it should be shown to the Court that they cannot be obtained. Unless this be done, this Court will not interfere, in civil cases, with the action of the lower Court. Pilot Rock Creek Canal Co. v. Chapman, 11 Cal. 161.

3. Affidavits must show materiality of evidence.-Where a party applied for a continuance to enable him to take the deposition of an absent witness, and the proof which was designed to be obtained would constitute no defense to the plaintiff's claim, the application was properly rejected. Hawley v. Stirling, 2 Cal. 470.

4. A party is bound to know the materiality of testimony, except in the case of surprise at trial. Berry v. Metzler, 7 Cal. 418.

5. In respect to the absence of defendant's witnesses, it was not shown that their testimony was material, or that the defendant had used due diligence to obtain their attendance. Both these things must be shown, to make the absence of witnesses a ground of adjourning a cause. Fake v. Edgerton, 6 Duer, 653.

6. That the evidence is not cumulative.-Affidavits for a continuance, on the ground of absence of witnesses, should state that the facts expected to be proved by the absent witnesses cannot otherwise be proved. People v. Quincy, 8 Cal. 89.

7. An affidavit for continuance, on the ground that a witness is absent from the State, must aver that the party cannot, to his knowledge, prove the same facts by any other witness. People v. Payne, 14 Cal. 419.

8. That the application is not made for delay.-An affidavit for a continuance, on the ground of absence of a witness, should state that the testimony wanted is not simply cumulative, and cannot be proven by others, but that the application is not made for delay; the character of the diligence used in trying to obtain the attendance of the witness, whether by exhausting the process of the law or otherwise, should also be stated. People v. Thompson, 4 Cal. 240; People v. Quincy, 8 Id. 89; Pierce v. Payne, 14 Id. 420.

9. That due diligence has been used.-Affidavits for continuance should show due diligence in endeavoring to procure the attendance of witnesses and in preparing the trial. People v. Baker, i Cal. 404.

10. Absence of evidence is no ground for continuance, unless reasonable diligence has been used to procure it. The party must have resorted to proper legal means for that purpose, or must satisfy the Court that a resort to such means would have been useless. Kuhland v. Sedgwick, 17 Cal. 123.

11. When evidence is in a party's own possession, its absence is not excused, on motion for continuance, by showing that through inadvertence he is unable to produce it. Id.

12. The answer of defendant was filed May 10th, 1852, and the application for a continuance, to take testimony in New York, was filed June 14th, 1852, during which interval no attempt was made to sue out a commission for the purpose: Held, that this is not a sufficient diligence to entitle the party to his application. Pierson v. Holbrook, 2 Cal. 598.

13. Admissions made to prevent a continuance.-The plaintiff, to avoid the continuance, admitted that a witness would testify to certain facts set up in the affidavit, and the trial proceeded. This affidavit, therefore, became evidence, but not conclusive proof of its contents. Blankman v. Vallejo, 15 Cal. 645. 14. Where it is admitted, for the purpose of preventing a continuance, that the several witnesses named would, if present, respectively testify as stated in the affidavit, and that their testimony should be considered as actually given on the trial, or as offered and overruled by the Court as improper, the testimony thus assumed was offered, and for all the purposes of the case must be deemed as actually before the Court. Boggs v. Merced Mining Co., 14 Cal. 358.

15. Surprise as a ground for continuance.-If defendants were surprised by an amendment, and found it necessary to assume a different line of defense in consequence of it, they would have been entitled to a continuance to prepare for their defense. Polk v. Coffin, 9 Cal. 58.

16. A refusal to grant a continuance for the absence of witnesses or counsel, under circumstances showing that the party or his counsel was surprised as to the time or place of holding Court, is error. Ross v. Austill, 2 Cal. 183.

17. Discovery of new evidence.-It is not good ground for a new trial that the defendant discovered material testimony at too late a period to produce the same at the trial. It would, however, be good ground on which to base a motion for continuance. Berry v. Metzler, 7 Cal. 418.

18. General decisions.-A mistaken advice of counsel to his client, not to prepare for trial, is no ground for a continuance. Musgrove v. Perkins, 9 Cal.

19. An agreement of counsel for the continuance of a cause, not reduced to writing, will not be regarded by the Court. Peralta v. Mariea, 3 Cal. 187.

20. A party who is unprepared for trial at the time of the calling of the case, should move for a continuance; and if he fails to do this, he waives his want of preparation and cannot afterwards, when judgment has gone against him, move for a new trial on this ground. Turner v. Morrison, 11 Cal. 21.

21. Courts are extremely liberal and indulgent in granting adjournments, and they are seldom or never appealed to in vain. Id.

22. In criminal cases, on a motion for continuance by defendant, on the ground of the absence of a material witness, based on a sufficient affidavit, the agreement of the District Attorney that the witness, if present, would have deposed as averred in defendant's affidavit, is not sufficient to warrant overruling the motion. People v. Diaz, 6 Cal. 249.

23. Where a case in the Twelfth District was set for trial on a particular day with the knowledge and consent of defendant's attorney, and he then, two or three days before the day of trial, goes to Alameda county to try another cause there, a continuance was denied. Haight v. Green, 19 Cal. 113.

24. A motion to adjourn, for the want of material evidence, may properly be denied, when founded upon an affidavit which is not entitled, and which also fails to show in the body of the affidavit, either by naming the parties or otherwise, in what action the same is made. Inoy v. Nathan, 4 E. D. Smith's C. P. R. 68.

25. Though the engagement of counsel is generally regarded as a ground of indulgence, yet where, as in this case, one adjournment had already been had on that ground, and the adjournment asked for would have put the cause over the summer vacation for three months, it ought not to be granted. Fake v. Edgerton, 6 Duer,

653.

CHAPTER IV.-Trial by Jury.

ARTICLE I.

FORMATION OF THE JURY.

SEC. 159. Jury, how drawn, and how many to consist of. 160. Jury to be sworn.

161. Challenges; each party entitled to four peremptory challenges.

162. Grounds of challenges.

163. To be tried by the Court. Witnesses may be examined.

§ 159. Jury, how drawn, and how many to consist of.

When the action is called for trial by jury, the Clerk shall prepare separate ballots containing the names of the jurors summoned, who have appeared and not been excused, and deposit them in a box. He shall then draw from the box twelve names, and the persons whose names are drawn shall constitute the jury. If the ballots become exhausted before the jury is complete, or if from any cause a juror, or jurors, be excused or discharged, the Sheriff shall summon, under the direction of the Court, from the citizens of the county, and not from bystanders, so many qualified persons as may be necessary to complete the jury. The jury shall consist of twelve

persons, unless the parties consent to a less number. The parties may consent to any number not less than three. Such consent shall be entered by the Clerk in the minutes of the trial.

1. Qualifications of jurors.-A person shall not be competent to act as juror unless he be: first, a citizen of the United States; second, an elector of the county in which he is returned; third, over twenty-one and under sixty years of age; and fourth, in the possession of his natural faculties; fifth, nor shall any person be competent to act as a juror who has been convicted of a felony, or misdemeanor, involving moral turpitude. Stat. 1853, 107.

2. A juror must be an elector of the county in which he is returned, and have resided in the county thirty days. Sampson v. Schaffer, 3 Cal. 107.

3. Residence depends upon intention as well as fact, and mere inhabitancy for a short period, against the intention of acquiring a domicil, would not make a resident, within the meaning of the law, so as to constitute an elector. alta, 4 Cal. 175.

People v. Per

4. A citizen of the State, who has resided in the county fourteen days, and then been absent some months from the State, with the intention of returning to reside in the county, and has returned and resided some fourteen days in the county, is a competent juror, his residence dating from the first residence, and not from his return. People v. Stonecifer, 6 Cal. 410.

5. In actions against a Sheriff.-When the Sheriff is a party to the action, the Court may order the cause tried by a special jury, to be summoned by the Coroner. Pacheco v. Hunsacker, 14 Cal. 120.

6. In trespass against a Sheriff, the Court below, on plaintiff's motion, may order a special jury to try the case, instead of the regular panel. The Sheriff, being interested, ought not to summon a jury. And there being no Coroner, an Elisor may be appointed to summon a jury. Id.

7. Objections to a juror, how waived.-A party who accepts a juror, knowing him to be disqualified, is estopped from afterwards availing himself of such disqualification. People v. Stonecifer, 6 Cal. 411.

8. Affidavits to the incompetency of a juror must be embodied in a bill of exceptions, or they will not be examined by the appellate Court. Id.

9. Where parties proceed to trial before a jury, without objection to the manner in which such jury was impanneled, it is too late after verdict to make such objection. Dayharsh v. Enos, 1 Seld. 531; Mayor of New York v. Mason, 1 Abb. Pr. R. 352.

10. Objections to panel.-An objection is not well taken to the panel of a trial jury, on the ground that such jury was summoned by order of the Court after the commencement of the term. People v. Rodriguez, 10 Cal. 59.

11. Unless an irregularity complained of in the formation of the jury goes to the merits of the trial, or leads to the inference of improper influence upon their conduct, their verdict should not be disturbed. Thrall v. Smiley, 9 Cal. 538.

12. The objection to the qualification of a juror, that his name was not on the venire returned by the Sheriff, comes too late after the verdict. The objection, if it had any validity, should have been urged at the trial. Id.

13. No regular panel having been drawn and summoned, the Court ordered thirty-six jurors to be summoned, which was done; and twenty-seven of them appearing, the Court caused their names to be put in a box, from which twelve were drawn to constitute a trial panel: Held, not to be a ground for challenge to the whole panel. People v. Stuart, 4 Cal. 225.

§ 160. Jury to be sworn.

As soon as the jury is completed, an oath or affirmation shall be administered to the jurors, in substance: that they, each of them, will well and truly try the matter at issue between

,

the

plaintiff, and

the defendant, and a true verdict render

according to the evidence.

§ 161. Challenges; each party entitled to four peremptory challenges.

Either party may challenge the jurors; but when there are several parties on either side, they shall join in a challenge before it can be made. The challenges shall be to individual jurors, and shall either be peremptory or for cause. Each party shall be entitled to four peremptory challenges.

1. Where several defendants are tried together, they are not allowed to sever their challenges, but all must join therein. This applies as well to peremptory as to challenges for cause. People v. McCalla, 8 Cal. 303.

§ 162. Grounds of challenge.

[1860.] Challenges for cause may be taken on one or more of the following grounds:

1st. A want of any of the qualifications prescribed by statute to render a person competent as a juror.

2d. Consanguinity or affinity within the third degree to either party.

3d. Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent, to either party; or being a member of the family of either party; or a partner in business with either party; or being security on any bond or obligation for either party.

4th. Having served as a juror or been a witness on a previous trial between the same parties for the same cause of action.

5th. Interest on the part of the juror in the event of the action, or in the main question involved in the action, except the interest of the juror as a member or citizen of a municipal corporation.

6th. Having formed or expressed an unqualified opinion or belief as to the merits of the action.

7th. The existence of a state of mind in the juror evincing enmity against, or bias to, either party.

J. P.

1. General decisions.-A general challenge of a juror for cause, without specification of the particular ground, is insufficient. The statute enumerates several different grounds for which such challenge may be taken, and a designation of the one upon which any particular challenge rests is essential to its consideration by the Court. It is not sufficient to say: "I challenge the juror for cause," and then stop. Paige v. O'Neal, 12 Cal. 483.