10,590. Issue of fact, how raised.

SEC. 590. An issue of fact arises:

1. Upon a material allegation in the complaint controverted by the answer; and,

2. Upon new matters in the answer, except an issue of law is joined thereon. 10,591. Issue of law, how tried.

SEC. 591. An issue of law must be tried by the court, unless it is referred upon consent.

10,592. Issues by whom tried, and order of trial.

SEC. 592. In actions for the recovery of specific real or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this code. Where in these cases there are issues both of law and fact, the issue of law must be first disposed of. In other cases, issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury, or to be referred to a referee, as provided in this code. [Amendment, approved March 24, 1874; Amendments 1873-4, 309; took effect July 1, 1874.(*) 10,593. Clerk must enter causes on calendar, to remain until disposed of.

SEC. 593. The clerk must enter causes upon the calendar of the court according to the date of issue. Causes once placed on the calendar for a general or special term, if not tried or heard at such term, must remain upon the calendar from court to court, until finally disposed of.

10,594. Parties may bring issue to trial.

SEC. 594. Either party may bring an 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.

10,595. Motion to postpone a trial for absence of testimony, requisites of.

SEC. 595. A motion to postpone a trial on the ground of the absence of evidence can 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 must not be postponed.. 10,596. In cases of adjournment party may have testimony of any witness taken. SEC. 596. 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.

SEC. 600. When the action is called for trial 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.

10,601. Challenges, peremptory, how taken.

SEC. 601. Either party may challenge the 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 are either peremptory or for cause. Each party is entitled to four peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff. [Amendment, approved March 24, 1874; Amendments 1873-4, 310; took effect July 1, 1874.(*)

10,602. Grounds of challenge.

SEC. 602. 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 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 knowledge of its material facts, or of some of them;

7. The existence of a state of mind in the juror evincing enmity against or bias to or against either party. [Amendment, approved March 24, 1874; Amendments 1873-4, 310; took effect July 1, 1874. (b)

10,603. Challenges, how tried.

SEC. 603. 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.

10,604. Jury to be sworn.

SEC. 604. As soon as the jury is completed, an oath must be administered to the jurors, in substance, that they and each of them will well and truly try the matter in issue between, the plaintiff, and verdict render according to the evidence.

ARTICLE II.

CONDUCT OF THE TRIAL.

10,607. Order of proceeding on trial.

defendant, and a true

SEC. 607. When the jury has been sworn, the trial must proceed in the following order, unless the judge, for special reasons, otherwise directs:

(a) The original section did not have the last sentence.

(b) The original section, in the fourth subdivision, had "third" instead of "fourth." In the seventh

subdivision it did not have the words "or against." The sixth subdivision was as follows: "6. Having formed or expressed an unqualified opinion or belief as to the merits of the action."

1. The plaintiff, after stating the issue and his case, must produce the evidence on his part;

2. The defendant may then open his defense, and offer his evidence in support thereof;

3. The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case;

4. When the evidence is concluded, unless the case is submitted to the jury on either side or on both sides without argument, the plaintiff must commence and may conclude the argument;

5. If several defendants, having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument;

6. The court may then charge the jury.

10,608. Charge to the jury-Instruction.

SEC. 608. In charging the jury the court may 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 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 pre- * pared and submitted by the counsel of either party.

10,609. Special instructions.

SEC. 609. Where either party asks special instructions to be given to the jury, the court must either give such instruction, as requested, or refuse to do so, or give the instruction with a modification, in such manner that it may distinctly appear what instructions were given in whole or in part.

10,610. View by jury of the premises.

SEC. 610. 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 of 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.

10,611, Admonition when jury permitted to separate.

SEC. 611. If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall 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. 10,612. Jury may take with them certain papers.

SEC. 612. Upon retiring for deliberation the jury may take with them all papers which have been received as evidence in the cause, except depositions, 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.

10,613. Deliberation of jury, how conducted.

SEC. 613. When the case is finally submitted to the jury, they may decide in court or retire for deliberation. If they retire, they must be kept together, in some convenient place, under charge of an officer, until they agree upon a ver

dict or are discharged by the court. Unless by order of the court, the officer having them under his charge must not suffer any communication to be made to them, or make any himself, except to ask them if they are agreed upon their verdict; and he must not, before their verdict is rendered, communicate to any person the state of their deliberatious, or the verdict agreed upon.

10,614. May come into court for further instructions.

SEC. 614. 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 must be given in the presence of, or after notice to, the parties or counsel.

10,615. Proceedings in case a juror becomes sick.

SEC. 615. 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 another juror may be sworn and the trial begin anew; or the jury may be discharged, and a new jury then or afterwards impaneled.

10,616. When prevented from giving verdict, the cause may be again tried.

SEC. 616. In all cases where the 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 may direct.

10,617. While jury are absent, court may adjourn from time to time-Sealed verdict-Final adjournment discharges the jury.

SEC. 617. While the jury are absent the court may adjourn from time to time, in respect to other business; but it is nevertheless 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 discharges the jury.

10,618. Verdict, how declared-Polling jury.

SEC. 618. When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman. The verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, they must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. Either party may

require the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict. If any one answer in the negative, the jury must again be sent out.

10,619. Proceedings when verdict is informal.

SEC. 619. When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.

ARTICLE III.

THE VERDICT.

10,624. General and special verdicts defined.

SEC. 624. The verdict of a jury is either general or special. A general 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 must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the court but to draw from them conclusions of law.

10,625. When a general or special verdict may be rendered.

SEC. 625. 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 all or any 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 must be filed with the clerk and entered upon the minutes. Where a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly.

10,626. Verdict in actions for money or on establishing counter-claim.

SEC. 626. 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 must also find the amount of the recovery.

10,627. Verdict in actions for specific personal property.

SEC. 627. 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, must find the value of the property, and if so instructed, the value of specific portions thereof, 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. [Amendment, approved March 24, 1874; Amendments 1873-4, 311; took effect July 1, 1874.(*) 10,628. Entry of verdict.

SEC. 628. Upon receiving a verdict, an entry must be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length; and where 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.

CHAPTER V.

TRIAL BY THE COURT.

10,631. Trial by jury, when and how waived.

SEC. 631. Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract, or, for the recovery of specific real or personal property, with or without damages, and with the assent of the court, in other actions, in manner following:

1. By failing to appear at the trial;

2. By written consent, in person or by attorney, filed with the clerk;

3. By oral consent, in open court, entered in the minutes. [Amendment, approved March 24, 1874; Amendments 1873-4, 311; took effect July 1, 1874.()

(a) The original section did not have the words with or without damages." It had a sentence after the "and if so instructed, the value of specific portions third subdivision as follows: "The court may prethereof." scribe by rule what shall be deemed a waiver in other

(b) The original section did not have the words “or, for the recovery of specific real or personal property,

cases."