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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.
Art. 894, Sec. 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.
Art. 895, Sec. 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 statute to render a person competent as a juror. 2. Consanguinity or affinity within the third degree to either 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 being security 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. 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 (1)
Art. 896, Sec. 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.
Art. 897, Sec. 164. If, after the empanelling 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. (2)
Art. 898, Sec. 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.(3)
Art. 899, Sec. 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.
Art. 900, Sec. 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. (1) People v. Reyes, 5 Cal. 347.
(2) Benedict v. Cozzens, 4 Cal. 381. (3) Kelly v. Cunningham, 1 Cal. 366; Carrington r. P. M. S. S. Co. id. 475; People r. McCanley, id. 379; Fowler v. Smith, 2 Cai. 39; Conrad v. Lindley, id. 173; Buzzell v. Bennett, id. 101; Benedict . Haggin, id. 385; Benham v. Rowe, id. 387; Russell v. Amador, 3 Cal. 400; Rabe v. Wells & Co. id. 148; Jamison r. Gunary, July T. 1855.
Art. 901, Sec. 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 conduct them into court. Upon their being brought into court, the information required shall be given in the presence of, or after notice to, the parties or counsel.(1)
Art. 902, Sec. 169. In all cases where a jury are discharged, or prevented from giving a verdict, by reason of accident or other cause, during the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court shall direct.
Art. 903, Sec. 170. While the jury are absent, the court may adjourn, from time to time, in respect to other business ; but it shall nevertheless be deemed open for every purpose connected with the cause submitted to the jury, until a verdict is rendered, or the jury discharged. The court may direct the jury to bring in a sealed verdict, at the opening of the court, in case of an agreement during a recess, or adjournment for the day. A final adjournment of the court for the term shall discharge the jury.
Art. 904, Sec. 171. When the jury have agreed upon their verdict, they shall be conducted into court by the officer having them in charge. Their names shall then be called, and they shall be asked by the court, or the clerk, whether they have agreed upon their verdict; and if the foreman answer in the affirmative, they shall
, on being required, declare the same. Árt. 905, Sec. 172. If the verdict be informal, or insufficient, in not covering the whole issue or issues submitted, the verdict may be corrected by the jury, under the advice of the court, or the jury may be again sent out.
Art. 906, Sec. 173. When the verdict is given, and is not informal or insufficient, the clerk shall immediately record it, in full, in the minutes, and shall read it to the jury, and inquire of them whether it be their verdict. If any juror disagree, the jury shall be again sent out; but if no disagreement be expressed, the verdict shall be complete, and the jury shall be discharged from the case. (2)
Art. 907. On the trial of any action in a court of record, either party may require the clerk to take down the testimony in writing.-[A. S. May 15, 1854, in.(3)
Art. 908. The party obtaining a postponement of a trial in any court of record, shall also, 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 shall 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.-[Act May 15, 1854.
Art. 909, Sec. 174. The verdict of a jury is either general or special. A gen. eral verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff
' or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict shall present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact shall be so presented, as that nothing shall remain to the court but to draw from them conclusions of law.(4) (1) Redman v. Gulnack, 5 Cal. 148. (2) Amsby v. Dickhouse, 4 Cal. 102. Berryman v. Wilson, 5 Cal. 44. Gill v. Castro, id. 40. Moody v. McDonala, 4 Cal. 297. (3) Ingraham r. Gildemeester, 2 Cal. 161. (4) Payne r. Jacobs, 1 Cal. 39; Perry v. Cochran, id. 180; George r. Law, id. 363 ; Tohler . Folsom, id. 207 ; Hoppe r. Robb, id. 373; Dwinelle v. Henriquez, id. 387; Vogan v. Barrier, id. 168; Johnson v. Pendleton, id. 132; Mateer r. Brown, id. 231; Persse r. Cole, id. 369; Panaud r. Jones, id. 488; Lawrence r. Collier, id. 37; Acquital v. Crowell, id. 191; Russell v. Armador, 2 Cal. 305; Truebody r. Jacobsen, id. 269; Brown 2. Brown, 3 Cal. 111; Estell v. Chenery, id. 467 ; Perkins v. Wilson, id. 137; Amsby v. Dickhouse, 4 Cal. 102; Treadwell v. Wells, id. 260; McDermott v. Taylor, July T. 1855; Meyer v. Gorham, 5 Cal. 322; Duell v. Bear River Co. id. 84; Blood v. Pixley, Jan. T. 1855; Wilson v. Berryman, 5 Cal. 44; Gill v. Castro, 5 Cal. 40; Lawson v. McGee, Jan. T. 1856; Bernard v. Raglan, Jan. T. 1856.
all or any
Art. 910, Sec. 175. In an action for the recovery of money only, or specific real property, the jury in their discretion may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict in writing upon
of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk and entered upon the minutes, where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.-[Am. May 15, 1854; R. S. St. 1851, 78; St. 1850, 442; C. L. 550. (1)
Art. 911, Sec. 176. When a verdict is found for the plaintiff, in an action for the recovery
of money, or for the defendant, when a counter claim for the recovery of money is established, exceeding the amount of the plaintiff's claim as established, the jury shall also find the amount of the recovery.
Art. 912, Sec. 177. In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant, by his answer, claim a return thereof, the jury, if their verdict be in favor of the plaintiff, or if
, being in favor of the defendant, they also find that he is entitled to a return thereof, shall find the value of the property, and may, at the same time, assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property.
Art. 913, Sec. 178. Upon receiving a verdict, an entry shall be made by the clerk in the minutes of the court, specifying the time of the trial, the names of the jurors and witnesses, and the verdict; and where a special verdict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consideration, the order thus reserving it.
Art. 914, Sec. 179. Trial by jury may be waived by the several parties to an issue of fact, in actions arising on contract; and with the assent of the court in other actions in the manner following: 1. By failing to appear at the trial.(2) 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent in open court, entered in the minutes. The court may prescribe by rule what shall be deemed a waiver in other cases. (3)
Art. 915, Sec. 180. Upon the trial of an issue of fact by the court, its decision shall be given in writing, and filed with the clerk, within ten days after the trial took place. In giving the decision, the facts found, and the conclusions of law, shall be separately stated. Judgment upon the decision shall be entered accordingly. (4)
Art. 916, Sec. 181. On a judgment upon an issue of law, if the taking of an account be necessary to enable the court to complete the judgment, a reference may be ordered.
ÅRT. 917, Sec. 182. 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 judgment thereon. 2. To ascertain a fact necessary to enable the court to proceed and determine the case. (5)
Art. 918, Sec. 183. When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following
1. When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein. 2. When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect. 3. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action; or, 4. When it is necessary for the information of the court in a special proceeding (1)
(1) Burritt v. Gibson, 3 Cal. 396; Winans v. Christy, 4 Cal. 70.
(5) Seaman v. Mariani, 1 Cal. 336; De la Riva r. Berryessa, 2 Cal. 195; Bates v. Visher, id. 355; Benham r. Rowe, id. 261; Smith v. Pollock, id. 92; Tyson v. Wells, id. 122; Smith v. Rowe, 4 Cal. 6; Johnson v. Dapman,
(2) Zane v. Crowe, 4 Cal. 112.
Jan. T. 1856.
Art. 919, Sec. 184. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties
. If the parties do not agree, the court or judge shall appoint one or more referees, not exceeding three, who reside in the county in which the action or proceeding is triable, and against whom there is no legal objection.(2)
Art. 920, Sec. 185. Either party may object to the appointment of any person as referee, 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 third degree, to either 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 being security on any bond or obligation for either party. 4. Having served as a juror, or been a witness on any trial between the same parties for the same cause of action. 5. Interest on the part of such person in the event of the action, or in the main question involved in the action. 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 such person evincing enmity against or bias to either party.
ART. 921, Sec. 186. The objections taken to the appointment of any person as referee shall be heard and disposed of by the court. Affidavits may be read and any person examined as a witness as to such objections.
ART. 922, Sec. 187. The referees shall make their report within ten days after the testimony before them is closed. Their report upon the whole issue shall stand as the decision of the court, and upon filing the report with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court. The decision of the referees may be excepted to and reviewed, in like manner as if made by the court. When the reference is to report the facts, the report shall have the effect of a special verdict.(3)
Art. 923, Sec. 188. An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be by jury, court or referees, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to a jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decision. But no exception shall be regarded on a motion for a new trial, or on an appeal, unless the exception be material, and affect the substantial rights of the parties.(4)
Art. 924, Sec. 189. The point of the exception shall be particularly stated, and may be delivered in writing to the judge, or if the party require it, shall be written down by the clerk; when delivered in writing, or written down by the clerk, it shall be made conformable to the truth, or be at the time corrected until it is so made conformable. When not delivered in writing, or written down as above, it may be entered in the judge's minutes, and afterwards settled in a statement of the case, as provided in this act.(5)
Art. 925, Sec. 190. No particular form of exception shall be required. The (1) Seaman v. Mariani, 1 Cal. 336; Russell v. Elliott, 2 Cal. 245; Geeseka v. Brannan, id. 517; Heslep v. San Francisco, 4 Cal. 1.
(2) Sloan . Smith, 3 Cal. 406; Phelps v. Peabody, Jan. T. 1857. (3) Walton v. Minturn, 1 Cal. 362; Porter v. Barling, 2 Cal. 72; Sloan r. Smith, 3 Cal. 406; Lambert v. Smith, id. 408; Grayson v. Guild, 4 Cal. 122; Goodrich v. Marysville, 6 Cal. 430 ; Case v. Maxcy, July T. 1855; McKim v. Redfern, id; McHenry v. Moore, 5 Cal. 90; Fierre v. Graves, Jan. T. 1856.
(4) Griswold v. Sharpe, 2 Cal. 17; People v. Martin, Oct. T. 1856. (5) Wilson v. Middleton, 2 Cal. 54.
objection shall be stated, with so much of the evidence, or other matter, as is necessary to explain it, but no more; and the whole as briefly as possible (1)
ART. 926, Sec. 191. When a cause has been tried by the court, or by referees, and the decision or report is not made immediately after the closing of the testimony, the decision or report shall be deemed excepted to on a motion for a new trial, or on appeal, without any special notice that an exception is taken thereto.
Art. 927, Sec. 192. A new trial is a re-examination of an issue of fact, in the same court, after a trial and decision by a jury, court or referees.(2)
ART. 928, Sec. 193. The former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes materially affecting the substantial rights of such party: 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. 2. Misconduct of the jury. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. 5. Excessive damages, appearing to have been given under the influence of passion or prejudice. 6. Insufficiency of the evidence to justify the verdict or other decision; or that it is against law. 7. Error in law, occurring at the trial, and excepted to by the party making the application.(3)
Art. 929, Sec. 194. When the application is made for a cause mentioned in the first, second, third and fourth subdivisions of the last section, it shall be made upon affidavit; for any other cause, it shall be made upon a statement prepared as provided in the next section.
ART. 930, Sec. 195. The party intending to move for a new trial shall give notice of the same within two days after the trial, and shall, within five days after such notice, prepare and file with the clerk the affidavit required by the last section, or a statement of the grounds upon which he intends to rely. If no affidavit or statement be filed within five days after the notice, the right to move for a new trial shall be deemed waived. The statement shall contain so much of the evidence, or reference thereto, as may be necessary to explain the grounds taken, and no more. Such statement, when containing any portion of the evidence of the case, and not agreed to by the adverse party, shall be settled by the judge, upon notice. On the argument, reference may also be made to the pleadings, depositions and documentary evidence on file, and to the minutes of the court. If the application be made upon affidavits filed, the adverse party may use counter affidavits on the hearing. Any counter affidavits shall be filed with the clerk one day at least previous to the hearing (4)
Art. 931, Sec. 196. The application for a new trial shall be made at the earliest period practicable after filing the affidavit or statement.(5)
Art. 932, Sec. 197. When trial by jury has been had, judgment shall be entered by the clerk, in conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings. (6)
Sec. 198. When the case is reserved for argument or further consideration, (1) Ringgold r. Haven, 1 Cal. 108. (2) Tohler v. Folsom, 1 Cal. 207; Ross r. Austell, 2 Cal. 183; Drake v. Palmer, id. 177; Bartlett v. Hayden, 3 Cal. 55 ; Speck v. Hoyt, id. 413; Hoyt v. Saunders, 4 Cal. 345; Taylor v. McKinley, id. 104; Watson v. McClay, id. 288; Buckelew v. Chipman, 5 Cal. 399; Buell v. Bear River Co. id. 84; Wood v. Fobes, id. 62; Cohen o. Gower, April T. 1855. (3)
Rogers v. Huie, 1 Cal. 429; Santillan v. Moses, id. 92 ; George v. Law, id. 363 ; Payne v. P. M. S. S. Co. id. 33; Ross v. Austell, 2 Cal. 183 ; Bartlett v. Hayden, 3 Cal. 55; Brooks v. Lyon, id. 113; Burritt v. Gibson, id. 396; Buckelew 1. Chipman, 5 Cal. 399; Taylor v. Cal. Stage Co. July T. 1856.
(4) Elliott v. Osborne, 1 Cal. 396; Dennison v. Smith, id. 437; Leech v. West, 2 Cal. 95; Hill v. White, id. 306; Hoagland v. Clarey, id. 474; Linn v. Twist, 3 Cal. 89; Harley v. Young, 4 Cal. 284; Survey v. Wells, id. 106; Benedict r. Cozzens, id. 381; Wood v. Fobes, 5 Cal. 62. (5) Baldwin v. Kramer, 2 Cal. 582. (6) Bidleman v. Kewen, 2 Cal. 248; People v. Lafarge, 3 Cal. 130; Morrison v. Dapman, id. 255.