, 1854-07-01

ton or ATTACHMENT.
/ OF TIE TRIAL. AND JCpGNFNT IL CIVIL ACTIONS
ISSUES AND TIIr MODE OF TRIAL.
Sec. l79. Issues arise upon the plead
| ings when a fact or conclusion of law i
maintained by the one party and controver
ted by the other, and are Of two kinds:
lst. OF law and
/ 2nd Of fact.
Sec. $50. An issue Of law arises npoI
a demurrer TO the complaint, answer, or re
ply, or to some part thereof.
Sec. ISL. An issue Of fact arises
lst. Upon material allegation in The
complaint controyertcd by the answer OF
2d. Upon new matter or set-oH con
troyerted by the reply; or
Sd. Upon new matter in the reply.
( See. 1872. Issues both of law and Of fact
may arise upon different parts Of the plead
inSs in the same action. In such cases the
issues of law shall be first tried unless the
court otherwise direct.
See. lS3. An issue Of law shall be tried
by the court unless referred upon consent
as provided in this act. An issue Of fact
shall be tried by jury, unless jury trial
be waived, or reference be ordered as
provided in this act.
See. 1874. A notice to continue trial
on the ground Of the absence Of evidence,
shall only be made upon affidavit showing
the materiality Of the evidence expected to
DC obtained, and that due diligence has
been used 10 procure it, The court may
also require the moving party TO take upon
affidavit the evidence which he expects to
obtain, and if the adverse party admit that
such evidence would he given, and that it
be considered as actually given on the trial,
or offered and overruled as improper, the
trial shall not be continued.
TRIALS BY JURY.
Sec. 1876. When the action is called for
trial, the clerk shall prepare separate bal
lots, containing the names of the jurors
summoned who have appeared and not been
excused, and deposit them in box. lie
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 il
from any cause juror or jurors be excused
or discharged, the sheriff, under the direc-
tion of the court, shall summon from the by
ISLANDERS or citizens Of the county SO many
qualified persons as may. be necessary to
complete the jury. The jury shall consist
OF twelve persons, unless the parties con-
sent to a less number. The parties may
consent to any number not less than three,
and such consent shall be entered by the
clerk on the minutes Of the trial.
See. lS6. Either party may challenge
the Jurors, but when there are several par
ties on either side, they shall join in chal-
lenge before it can be made The chal-
lenge shall be to Individual jurors, and shall
be peremptory, or for cause. Each party
shall be entitled to three peremptory chal-
lenges
Sec. 1871 Challenges for cause may be
taken on one or more Of the following
grounds
l. A want of any of the qualifications
prescribed by law to render e,person com
petent as 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 member Of the family of
either party; or partner in business with
either party; or being security on any bond
for either party.
4. Interest on the part Of the juror in
the event of the action, or in the main
question involved in the action.
qualified opinion or belief as to the merits
Of the action.
6. The existence Of state Of mind in
the juror evincing enmity against either
party.
4 Sec. lss. Challenges for cause, shall
be tried by the court. The juror chaleng-
ed, and any other person as witness, may
be examined on the trial Of the challenge.
Sec. lS9. As soon as the jury is full,
an oath or affirmation shall be administered
10 the jurors in substance that they will
well and truly try the matter in issue be-
tween the plaintiff and the defendant, and
a true verdict give according to the evil
dence.
Sec. 100. When the jury is full and
sworn, the ballots containing the names Of
The jurors sworn shall be laid aside till the
jury SO sworn is discharged, and then they
shall be returned to the box ard every
ballot drawn containing the name of a ju-
ror not SO sworn, shall be returned to the
box as soon as the jury is completed.
Sec. l9l. The jurors may be kept together
in charge Of a proper officer, or may, in the
discretion Of The court, at any time Before
the submission of the case to the ,16ry, be
permitted to separate; in either case they
may be admonished by the court that it is
their duty not to converse with any person,
or allow any other person to converse with
them, or among themselves on any subject
connected with the trial, or to express any
opinion thereon until the case is finally
submitted to them.