Calendar of court.

§ 156. The clerk shall enter causes upon the calendar of the court, according to the date of the issue. Causes once placed on the calendar 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.

Moving case for trial or hearing.

§ 157. 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.

Motion for continuance.

§ 158. 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.

[2 Cal. 470; 3 Cal. 185; 9 Cal. 211; 31 Cal. 95, 218; 32 Cal. 102.]

CHAPTER IV.

TRIAL BY JURY.

ARTICLE I.

FORMATION OF THE JURY.

Jury, how drawn.

§ 159. 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.

[18 Cal. 411.]

Oath to jury.

§ 160. 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 in issue between, the plaintiff, and , the defendant, and a true verdict render according to the evidence.

Challenges.

§ 161. 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.

Causes of challenge.

§ 162.* Challenges for cause may be taken on one or more of the following grounds:

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

Second. Consanguinity or affinity, within the third degree, to either party.

Third. 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.

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

Fifth. 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.

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

Seventh. The existence of a state of mind in the juror

* Applicable to justices' courts, see 590.

evincing enmity against, or bias to, either party. (a) [Amendment, approved April 28, 1860, 298.

[1 Cal. 37; 12 Cal. 492.]

Trial of challenges.

§ 163. Challenges for cause shall be tried by the court. The juror challenged, and any other person, may be examined as a witness on the trial of the challenge.

ARTICLE II.

CONDUCT OF THE TRIAL.

Sickness of juror.

§ 164. If, after the impaneling of the jury, and before verdict, a juror become sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case the trial may proceed with the other jurors, or a new jury may be sworn, and the trial begin anew; or the jury may be discharged, and a new jury then or afterwards impaneled.

Charge of court.

§ 165. In charging the jury the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict; and if it state the testimony of the case, it shall also inform the jury that they are the exclusive judges of all questions of fact. The court shall furnish to either party, at the time, upon request, a statement in writing of the points of law contained in the charge; or shall sign, at the time, a statement of such points prepared and submitted by the counsel of either party.

(a) The original section was the same as the text, except that it did not contain the exception in the fifth subdivision.

[2 Cal. 39, 173; 3 Cal. 400; 4 Cal. 105; 5 Cal. 102; 29 Cal. 555; 32 Cal. 231.]

Retirement of jury.

§ 166. After hearing the charge, the jury may either decide in court, or retire for deliberation. If they retire, they shall be kept together in a room provided for them, or some other convenient place, under the charge of one or more officers, until they agree upon their verdict, or are discharged by the court. The officer shall, to the utmost of his ability, keep the jury together, separate from other persons; he shall not suffer any communication to be made to them, or make any himself, unless by order of the court, except to ask them if they have agreed upon their verdict; and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.

Papers the jury may take.

$167. Upon retiring for deliberation the jury may take with them all papers (except depositions), which have been received as evidence in the cause, or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession; and they may also take with them notes of the testimony, or other proceedings on the trial, taken by themselves, or any of them; but none taken by any other person.

Return for instructions.

§ 168. After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed of any point of law arising in the cause, they may require the officer to con