divisions of section 585 of the Code of Civil Procedure upon the failure of the defendant to answer. If judgment be for the defendant upon an issue of law, and the taking of an account or the proof of any fact be necessary to enable the court to complete the judgment, a reference may be ordered as in that section provided. The failure of a party to an action to deposit jury fees as required by reasonable rules and orders of the court, is a waiver of the right of trial by jury.8 The court has the right, notwithstanding a waiver of the right of trial by a jury to direct that an issue of fact be tried by a jury.9 In an action in equity however, the verdict of a jury is advisory, and the court must find on the issues of fact so tried by a jury. The provisions of the code that the court must file its written decision within thirty days after the submission of the case to the court for its decision is directory.10 If parties to an action go to trial without demanding a jury, the right to a jury trial is waived.11 In all common law actions, and in actions in which the right of trial jury is given by statute, a trial by jury must be had, unless such trial be waived. The right of trial by jury guaranteed by the constitution refers to the right as it existed at common law.12 7. Code of Civil Procedure, 631, 636. S. Conneau v. Geis, 73 Cal. 177; Adams v. Crawford, 116 Cal. 495. 9. Doll v. Anderson, 27 Cal. 251. 10. McLennan v. Bank of California, 87 Cal. 569. 11. Pfister v. Dascey, 65 Cal. 403; 67 Cal. 490. CHAPTER XXXI. OF A TRIAL BY JURY. The right of trial by jury considered as an absolute right, does not extend to cases of equity jurisdiction.1 A jury within the meaning of the constitution must consist of twelve men.2 By the provisions of the constitution of California, in civil actions three-fourths of a jury may render a verdict. And a trial by jury may be waived, in criminal cases not amounting to a felony, by the consent of both parties expressed in open court, and in civil cases by the consent of the parties signified as prescribed by law; and in civil actions, and cases of misdemeanor, the jury may consist of twelve, or of any number less than twelve upon which the parties may agree open court.3 in At common law, a jury consisted of twelve persons, all of whom must have agreed upon a verdict before such verdict could be found. A party to an action has the right to have the action tried by an impartial jury, but has not the right to have the action tried by any particular jurors.4 When an action is called for trial by a jury and no valid ground is shown for a continuance, the clerk must draw from the trial jury box of the court, the ballots containing the names of the jurors, until the jury is completed, or the ballots are exhausted. Either party may challenge the jurors; but when there are several parties on either side, they must join in the challenge 1. Pacific Railway Company v. Wade, 91 Cal. 449. 2. People v. O'Neil, 48 Cal. 258. 3. California Constitution, Art. I., Sec. 7. 4. Asevada v. Orr, 100 Cal. 301; People v. Arceo, 32 Cal. 40. before it can be made. The challenges to the individual jurors. are either pre-emptory or for cause. Each party is entitled to four pre-emptory challenges. If no pre-emptory challenges are taken until the panel is full, they must be taken by the parties. alternately commencing with the plaintiff. Challenges for cause may be taken on one or more of the following grounds: 1. A want of any of the qualifications prescribed by statute to render a person competent as a juror; 2. Consanguinity or affinity within the fourth degree to any party; 3. 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 surety on any bond or obligation for either party; 4. Having served as a juror, or been a witness on a previous trial between the same parties for the same cause of action; 5. Interest on the part of the juror in the event of the action, or in the main question involved in the action, except his interest as a member or citizen of a municipal corporation: 6. Having an unqualified opinion or belief as to the merits of the action, founded upon a knowledge of its material facts, or of some of them; 7. The existence of a state of mind on the part of the juror evincing enmity against or bias for or against either party. Challenges for cause must be tried by the court. The juror challenged and any other person may be examined as a witness on the trial of the challenge. As soon as the jury is completed, the jurors must be sworn or affirmed in substance that they and each of them will well and truly try the matter in issue between the plaintiff, naming him, and the defendant, naming him, and a true verdict render according to the evidence.5 If before the jury is completed to try an action and the ballots in the trial jury box are exhausted, the court may by an order 5. Code of Civil Procedure, Secs. 600, 604. entered in the minutes of the court, direct the sheriff, or if he be disqualified, the coroner of the county, and if he be disqualified, then an elisor chosen by the court, forthwith to summon a sufficient number of persons from the body of the county, or city and county, and not from the bystanders and having the qualifications of jurors, to complete the panel. Neither the sheriff nor the coroner is qualified to serve such process if he is a party to the action, or if, by reason of bias or prejudice or other cause, he would not act promptly or impartially. At common law, if the sheriff or coroner be not indifferent persons, and are disqualified to summon a jury for a case, the venire is directed to two clerks of the court, or two persons of the county named by the court and sworn, who are called elisors and their return is final; no challenge being allowed to their array.7 Under the provisions of section 226 of the Code of Civil Procedure, the court may order a sufficient number of jurors to be drawn and summoned forthwith or the court may, by an order entered in its minutes direct the sheriff or an elisor chosen by the court, forthwith to summon so many good and lawful men of the county, or city and county, to serve as jurors, as may be required; and the persons so summoned, if qualified, will act as jurors. When the jury has been sworn, the trial must proceed in the following order unless the court for special reasons otherwise directs. The plaintiff after stating the issue and his case, must produce the evidence on his part. The defendant may then open his defense, and offer his evidence in support thereof. The parties may then respectively offer rebutting evidence only, unless the court for good reasons and in furtherance of justice, permit them to produce evidence upon their original case. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argu 6. Code of Civil Procedure, Sec. 227; Political Code, Secs. 4191, 4192. 7. 3 Bl. Com. 355. ment, the plaintiff must commence and may conclude the argu ment. If several defendants having separate defenses appear by different counsel, the court must determine their relative order in the evidence and argument, and after argument, or if there be no argument, the court may charge the jury. In charging the jury, the court may state to them all matters of law, which it deems necessary for their information in giving their verdict; and if the court state the testimony in the case, it must inform the jury that they are the exclusive judges of all questions of fact. The court must furnish to either party, at the time, upon request, a statement in writing of the points of law contained in the charge, or sign at the time a statement of such points prepared and submitted by the counsel of either party. When either party asks special instructions to be given to the jury, the court must either give such instructions, or refuse to do so, or give the instructions with a modification, in such a manner that it may distinctly appear what instructions were given in whole or in part. When in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent no person other than the person so appointed, shall speak to them. on any subject connected with the trial. If the jury are permitted to separate during the trial, they must be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by, any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them. Upon retiring for deliberation the jury may take with them all papers which have been received as evidence in the cause, except depositions, and copies of such papers as ought not in the opinion of the court, to be taken from persons having them in possession; and they may also take with them notes of the testi |