ter 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 vs. Thompson, 4 Cal., p. 240; People vs. Quincy, 8 id., p. 89; Pierce vs. Payne, 14 id.,

p. 420.

2. ABSENCE OF COUNSEL.-An action was commenced September 9th, 1867, and the demurrers were filed September 19th. On the 13th of November following the cause was placed on the calendar, and set for trial on the demurrers for the 14th. On the 14th defendants asked for a continuance, on affidavits setting out substantially that they had employed attor neys residing in a county distant from Kern County, who had prepared and filed demurrers, and had informed them that the cause would not be tried until the term of said Court for December, 1867, and that the attorney would then be in attendance; that the term then being held was an adjourned term of the June Term, 1867, and that they could not procure attendance of their attorneys, and were taken by surprise; that one Bridger was a material witness for defendant Menzel, and lived in Los Angeles, and Menzel had seen him several weeks before, when he promised to be in attendance, but that he had not come, and that by reason of the promise and what the attorney told them they had taken no steps to secure the witness' deposition. The Court denied the motion for a continuance, and on the 15th of November overruled the demurrers. On the 18th the defendants answered, and the cause was set for trial on the 19th. On appeal, it was held: that it was not error, under the circumstances, to deny the continuance or overrule the demurrers.-Lightner vs. Menzel, 35 Cal., p. 459. Where a case, set for trial on a particular day, with the knowledge and consent of defendant's atterney, and he then, two or three days before the day of trial, goes to another county to try another cause there, a continuance was denied.-Haight vs. Green, 19 Cal., p. 113.

3. ABSENCE OF A PARTY.-A case was called for trial in its regular place on the calendar; counsel for defendant moved to postpone the trial for three days, on account of the temporary absence of the defendant. The motion was based upon an affidavit of the business associate of the defendant to the effect that the defendant had gone to the State of Nevada a few days previous to the motion on important private business, and that affiant knew nothing about the facts of the case, but believed that it would be impossible to try it without the defendant's presence, as the facts were alto

gether within his knowledge, and that he did not know when defendant would return, but he expected him to do so within a few days. The Court denied the motion, and upon appeal it was held that the denial did not amount to an abuse of discretion.-Wilkinson vs. Parrott, 32 Cal., p. 102.

4. NEWLY DISCOVERED EVIDENCE.-Material testimony, discovered at too late a period to produce the same at the trial, is good grounds for a continuance.Barny vs. Metgler, 7 Cal., p. 418.

5. SURPRISE.-If defendants are surprised by an amendment, and find it necessary to assume a different line of defense in consequence of it, they are entitled to a continuance to prepare for their defense.-Polk vs. Coffin, 9 Cal., p. 58. 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 erroneous.-Ross vs. Austill, 2 Cal., p. 183. If a party is taken by surprise by an extension of time to take testimony before a referee, and by the testimony thereby. introduced, he is for that reason entitled to a continuance.-People vs. Holden, 28 Cal., p. 129.

6. DISCRETION OF THE COURT.-Granting or refusing a continuance rests very much in the sound discretion of the Court.-Musgrove vs. Perkins, 9 Cal., p. 211. And even when the facts show that the action of the Court below approached 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 the appellate Court will not interfere, in civil cases, with the action of the lower Court.-Pilot Rock Creek Canal Co. vs. Chapman, 11 Cal., p. 161; People vs. Gaunt, 23 Cal., p. 156. The Judge, after having heard the testimony and argument of counsel in a case, and announced orally from the bench his finding, may continue the case until the next term of Court.-Hastings vs. Hastings, 31 Cal., p. 95.

7. ADMISSIONS TO PREVENT A CONTINUANCE.-In criminal cases, on a motion for continuance made 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,

66-VOL. I.

In cases of adjournment a party may have the

testimony

of any witness taken.

would have deposed as averred in defendant's affidavit, is not sufficient to warrant overruling the motion; he should have agreed that the facts stated were true.— People vs. Diaz, 6 Cal., p. 249. Where the plaintiff, to avoid the continuance, admits that a witness would testify to certain facts set up in the affidavit, and the trial proceeds, the affidavit becomes evidence, but not conclusive proof of its contents.-Blankman vs. Vallejo, 15 Cal., p. 645; Boggs vs. Merced Mining Co., 14 Cal., p. 358.

8. GENERALLY.-Courts are liberal in granting postponements; and if a party who is unprepared for trial at the time of the calling of his case fails to move for a continuance, he waives his want of preparation, and cannot afterwards, when judgment has gone against him, move for a new trial on this ground.-Turner vs. Morrison, 11 Cal., p. 21. The mistaken advice of an attorney to his client, not to prepare for trial, is not ground for a continuance.-Musgrove vs. Perkins, 9 Cal., p. 211. An agreement for a postponement made of counsel, but not reduced to writing, will not be regarded by the Court.-Peralta vs. Mariea, 3 Cal., p. 187.

596. (§ 664.) The party obtaining a postponement of a trial in any Court of record must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, be then taken by deposition before a Judge or Clerk of the Court in which the case is pending, or before such Notary Public as the Court may indicate, which must accordingly be done; and the testimony so taken may be read on the trial, with the same effect, and subject to the same objections, as if the witnesses were produced.

NOTE.-Stats. 1854, p. 73.

CHAPTER IV.

TRIAL BY JURY.

ARTICLE I. FORMATION OF JURY.

II. CONDUCT OF THE TRIAL.

III. THE VERDICT.

SECTION 600. Jury, how drawn.

601. Challenges. Each party entitled to four peremptory

challenges.

602. Grounds of challenge.

603. Challenges, how tried.
604. Jury to be sworn.

drawn.

600. (§ 159.) When the action is called for trial Jury, how by jury, 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.

NOTE. The original section contained provisions as to the number to compose a jury, the manner of summoning talesmen, and the preparation of a trial jury box. All these provisions are contained in Part I of this Code, Vol. 1, pp. 123 to 139, inclusive.

1. JURY-HOW CONSTITUTED.-See Secs. 190 to 195, inclusive, ante.

2. QUALIFICATIONS AND EXEMPTIONS OF JURORS.See Secs. 198, 199, 200, 201, ante. A party who accepts a juror, knowing him to be disqualified, cannot afterwards avail himself of such disqualification.-People vs. Stonecifer, 6 Cal., p. 411.

3. MANNER OF SELECTING AND RETURNING JURORS. See Secs. 204-210, inclusive, ante.

4. TIME AND MANNER OF DRAWING JURORS.-See Secs. 214-221, inclusive, ante.

5. MANNER OF SUMMONING JURORS.-See Secs. 225, 226, 227, ante; People vs. Rodriguez, 10 Cal., p. 59; People vs. Stuart, 4 id., p. 225. Where the Sheriff is a party.-Pacheco vs. Hunsaker, 14 Cal., p. 120.

6. MANNER OF IMPANELING JURY.-See Secs. 246, 247, ante. In a criminal case.-People vs. Scoggins, 37 Cal., p. 676.

7. EXCUSING JURORS.-See Sec. 201, ante; People vs. Arceo, 32 Cal., p. 40.

601. (§ 161.) Either party may challenge the Challenges. jurors, but where there are several parties on either side, they must join in a challenge before it can be made. The challenges are to individual jurors, and

་་།

Amusded 1873-4.

Amended 1873-4.

524

entitled to

CODE OF CIVIL PROCEDure.

Each party are either peremptory or for cause.
entitled to four peremptory challenges.

four

peremptory
challenges.

Grounds of
challenge.

Each party is

NOTE.-People vs. McCalla, 8 Cal., p. 303; People vs. Scoggins, 37 Cal., p. 679. Each party has a right to put questions to a juror, to show not only that there exists proper grounds for a challenge for cause, but to elicit facts to enable the party to decide whether or not he will make a peremptory challenge.-Watson vs. Whitney, 23 Cal., p. 378; People vs. Reyes, 5 Cal., p. 347.

602. (§ 162.)

Challenges for cause may be taken on one or more of the following grounds:

1. A want of any of the qualifications prescribed by this Code to render a person competent as a juror;

2. Consanguinity or affinity, within the third 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 the interest of the juror as a member or citizen of a municipal corporation;

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

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

NOTE.-1. WANT OF QUALIFICATIONS.-See Secs. 198, 199, 200, and 201, ante, and Subdivision 2 of note to Sec. 600, ante.

2. CONSANGUINITY.-See Secs. 1389 to 1393, inclusive, of the Civil Code.

3. JUROR OR WITNESS ON FORMER TRIAL.-Where a juror had been accepted by both parties, and subse