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.

See Sec. 664.

1. The moving party must show by affidavit sufficient diligence on his part, and that he did all in his power.-Frank v. Brady, 7 Cal., July T.

CHAPTER IV.

TRIAL BY JURY.

ARTICLE I.

FORMATION OF THE JURY.

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

2. The right of trial by jury cannot be waived by implication, but may be, in the mode prescribed by law.-Smith v. Pollock, 2 Cal., 92; Russell v. Elliott, ib., 245; Exline v. Smith, 5 Cal., 112.

3. Parties to a suit in chancery are not entitled to a trial by jury.-Walker v. Sedgwick, ib., 192; Cahoon v. Levy, ib., 294.

4. In chancery cases the trial by jury is but advisory to the court, and improper

testimony and erroneous instructions can do no injury if justice has been rendered in the final result.-Still v. Saunders, 7 Cal., Oct. T.

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 at issue between the plaintiff,

and

evidence.

the defendant, and a true verdict render according to the

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.

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162. Changes for

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more of the folSEC. 19. Section one hundred and sixty-two of said act is amended so as to read as follows:

Sec. 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 van either party.

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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 eit in business with either party, or being security on any bond or obligation for either party.

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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 corpo

ration.

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 evincing enmity against, or bias to, either party.

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.

that the people

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1. The declaration of a peor the presome out and hang hair cenaces him mempetent 9 Cal 298

The objection to the Competence qualification of a furor that his name was not on the resure retumed, too late after verdict. The object of the law is secure good mew, and to is no difference were dummoned. it.

in what order.

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