the same conclusion reached as in the former case. This construction does not seem unreasonable. In those cases in which the statute requires the party to except, if he desires the question reviewed, the exception so taken will be unavailable unless incorporated into a a bill of exceptions, and thus made a part of the judgment roll; and, we think, in those cases where the statute saves the exception for the party against whom the ruling is made, that unless the ruling and exception are, within the statutory time, preserved by bill of exceptions, the question should thereafter be deemed waived. See Grazidai v. Bastanchure, 47 Cal. 167. Under this construction of the statute a rule of practice has been established, and in the face of these authorities we do not feel warranted in attempting to change it. Rehearing denied.

MORGAN, C. J., and BRODERICK and Buck, JJ., concurring.

(2 Idaho [Hasb.] 111)

GUTHRIE and others v. FISHER and another.
Filed February 25, 1885.

1. PRACTICE-ATTACHMENT-SURETIES ON AN UNDERTAKING.

Sureties on an undertaking given for the release of attached property cannot go behind the judgment to set up any matter of defense to their liability which might have been pleaded in the original action.

2. SAME WHEN ANSWER MAY BE STRICKEN FROM THE FILES.

Where an answer is irrelevant, it may, on motion, be ordered stricken from the files.

3. SAME-DEMURRER-BILL OF EXCEPTIONS.

Where a general demurrer is interposed in the trial court, questioning the sufficiency of the complaint, and the demurrer is overruled, and the ruling is not saved by bill of exceptions, such question is deemed adjudicated, and the same objection to the complaint cannot be renewed in the supreme court.

Appeal from the Third judicial district, county of Oneida. The opinion states the facts.

Prickett & Lamb, for appellants.

Smith & McCollum, for respondents.

BY THE COURT. This action is founded upon an undertaking given in an attachment suit brought by these plaintiffs against Phelan & Ferguson. The undertaking was given for the release from attachment of the property which had been seized by the attachment issued in the case, as the property of said Phelan & Ferguson, to secure the payment of any judgment which might be recovered in the action against them. By the undertaking the defendants promised that, in case the plaintiffs recovered judgment against Phelan & Ferguson in the action, they (Phelan & Ferguson) would, on demand, redeliver the property so released from the attachment to the proper officer, to be applied to the payment of the judgment, and that in default thereof these defendants would, on demand, pay to the plaintiffs the full value of the property released, not exceeding the sum of $1,150. In the attachment suit judgment was recovered against Phelan &

Ferguson on the twenty-fifth day of May, 1883, and remained unsatisfied. This action was commenced on the seventeenth day of April, 1884. A general demurrer to the complaint was interposed in the trial court and overruled.

On the seventh day of June, 1884, the defendants filed an answer which alleged that the action in which the undertaking was given was prematurely brought upon a promissory note not due, and that on the twentieth day of May, 1884, an appeal was duly taken to the supreme court from the judgment of May 25, 1883, and that an undertaking was given on said appeal. On motion of the plaintiffs, the answer was stricken from the files as irrelevant, and the defendants were given one day to answer. On the next day thereafter, defendants declining to answer, a judgment was rendered against them, as demanded by the complaint. To the ruling of the court striking the answer from the files, and also to the entry of the judgment, the defendants excepted, and present these questions by a bill of exceptions for the consideration of this court. We do not think the exceptions well taken.

The answer did not aver that an undertaking had been given to stay the execution of the judgment, nor did it allege any facts that constituted a defense to the action, and we think it was properly stricken from the files. The questions raised by the demurrer in the trial court have been argued here, but the ruling upon the demurrer and the exception thereto are not in form in the record to be reviewed, and by failing to preserve and present the questions in due form, the defendants are deemed to have waived the same, and cannot now by a new demurrer, interposed in this court, be heard to say that the complaint is insufficient. Fox v. West, 1 Idaho, 782; Guthrie v. Phelan, ante, 107; Nash v. Harris, 57 Cal. 242.

Order and judgment affirmed.

MORGAN, C. J., and BRODERICK and BUCK, JJ., concurring.

(2 Idaho [Hasb.] 90)

PEOPLE v. KUOK WAH CHOI, a Chinaman, commonly called Ah Sam. Filed February 17, 1885.

J. CRIMINAL LAW AND PRACTICE-JURY-HOW IMPANELED.

Under our criminal practice act the method of impaneling a trial jury in a criminal action is different from that of impaneling a trial jury in a civil case under our Code of Civil Procedure. In impaneling a jury in a criminal action, the court may require the parties to exerc se all their challenges, peremptory or for cause, and the juror, if accepted, be sworn to try the cause as each juror appears, and before another is called; or may, in its discretion, allow the clerk to draw from the box 12 names before any challenges are interposed, and after these are examined for cause and passed upon, draw others to take the place of thos excused, and allow the parties to examine and pass upon all thus called before exercising their peremptory challenges: provided that, in case of recess or adjournment, the peremptory challenges be exercised as to those passed and accepted for cause at the time of taking recess or adjournment, and those not excused be sworn to try the cause, and thus placed under the control of the

Court.

2. SAME-CHALLENGE.

The court may, for good cause shown, permit a challenge, either peremptory or for cause, to be taken after a juror is sworn and before the jury is completed.

G. L. Waters, for appellant.

Huston & Gray, for respondent.

BY THE COURT. The defendant was tried and convicted at the June term, 1884, in the district court in Alturas county, on a charge of murder in the first degree. He appeals from the judgment, and the order overruling his motion for new trial, and assigns as error the ruling of the court compelling him, in impaneling the trial jury, to exercise his peremptory challenges as the jurors were severally called, and before the whole number of 12 jurors were drawn, as in civil causes. Under the statutes of this territory the method of selecting, drawing, and summoning jurors is the same for both criminal and civil actions. The procuring the attendance of jurors preliminary to the trial is provided for in our Code of Civil Procedure, from sections 73-108, inclusive. Section 109 directs that when an action is called for trial such proceedings shall be had in impaneling a trial jury as are prescribed in said Code; and section 111 provides that if the action is a criminal one the jury must be impaneled as provided by the statutes relating thereto. The statutes relating thereto are in the criminal practice act. Sections 109 and 111 of the Code of Civil Procedure, if not contradictory, have at least the tendency to confuse the practice; but the obvious intention of the legislature was to provide different methods of impaneling juries in civil and criminal actions. This method in civil causes is specified in chapter 23 of our Civil Code; and in criminal actions, in the criminal practice act, from sections 318-353, inclusive. Section 313 of the criminal practice act, which provides that the trial juries in criminal actions shall be formed in the same manner as trial juries in civil actions, if it was intended to apply to the impaneling of trial juries to that extent, was repealed by section 111 of the Code of Civil Procedure. Section 332 of the criminal practice act provides "that a challenge to an individual juror is either peremptory or for cause. Section 333 provides that either of these challenges must be taken when the juror appears and before he is sworn to try the cause, but the court may for good cause permit either of these challenges to be taken after the juror is sworn, and before the jury is completed. Section 377 of the criminal practice act provides that in all cases, on the trial of an indictment for felony, the jurors sworn shall be kept together until finally discharged from a further consideration of the case. Section 4 of an act amendatory thereto, approved January 22,-1881, of the eleventh session, so far modifies this section as to allow jurors to separate in the discretion of the court in the trial of felonies less than murder.

These sections clearly contemplate that in trials for murder after a juror is called he shall remain under the control of the court until he is rejected as incompetent; or, if accepted, until the termination v.6p,no.2-8

of the trial. The ordinary import of the language used in these sections would justify the practice of requiring the respective parties to exercise all their challenges, either peremptory or for cause, and, if accepted, that each juror be sworn to try the cause before another is called. This was the method pursued in impaneling the jury in the case at bar, and we think the exception to it is not well taken. This method may be, and often is, so far modified in the discretion of the court as to allow the clerk to draw 12 names from the box before any challenges are interposed, and after these are examined for cause and passed upon, to allow others to be drawn to take the place of those excused, and allowing the defendant to examine and pass upon all those thus called before exercising his peremptory challenges. We see no objection to this method, provided that in case of recess or adjournment the peremptory challenges be exercised or waived upon all those passed for cause, and those accepted be sworn to try the cause and remain under the control of the court.

The reason for this practice may be found in the necessity on the part of government of securing jury trials as far as possible free from every suspicion of improper influences. It often occurs that several days are occupied in impaneling a jury in important criminal cases. During this time a portion of the jury having been accepted must either be under the control of the court or allowed to mingle freely with the people in the community in which the court is held, and with those in attendance upon court, generally greatly interested in the cause about to be tried. Jurors are thus subject to various corrupt influences, and often to the necessity of hearing in advance numerous accounts and discussions of the action which they are about to try. The law-making power has attempted to guard against this evil as far as possible by placing the juror, from the time he is accepted ly the respective parties and sworn, directly under the control. of the court. It is claimed that this practice results in inconvenience to the juror; but mere inconvenience should not weigh against the hazard of corrupt trials. The defendant can suffer no injury by thus exercising his peremptory challenge before the jury is completed, for the statute provides that the court may, for good cause shown, permit a challenge, either peremptory or for cause, to be exercised after the juror is sworn and before the jury is completed. The cases cited in opposition to this construction are founded upon the California statutes, which provide that juries in criminal and civil cases be formed in the same manner. Our statutes provide a different method, and hence the authorities cited do not apply to the case at bar.

The legislature have modified the effect of swearing the juror to try the cause by providing, in section 4 of the act before referred to, that a jury sworn to try an indictment for any offense, except murder, may at any time during the trial, before the submission of the cause, in the discretion of the court, be permitted to separate; but this enact

ment does not modify the method of impaneling the jury. The appellant also assigns as error the admission of the statement of defendant before the committing magistrate at the time of his preliminary examination. The objection to this evidence was not distinctly made, nor was any exception taken to its admission. It is an established principle in practice that when evidence is admitted under objections, and no exception is taken to the ruling of the court, the objection is waived. Turner v. Tuolumne Water Co. 25 Cal. 398.

We are able to find no error in the record, and the judgment is therefore affirmed.

MORGAN, C. J., and BUCK and BRODERICK, JJ., concurring.

(2 Idaho [Hasb.] 101)

EDDY and others v. VAN NESS and others.

PRACTICE-APPEAL

Filed February 17, 1885.

UNDERTAKING

When two appeals are taken, one from the judgment and the other from an order refusing a new trial, and an undertaking is given "on such appeal," the bond is void for uncertainty, and the appeals will be dismissed because no undertaking was filed in either appeal.

Appeal from Second judicial district, Alturas county. Motion to dismiss appeal.

F. E. Ensign and J. Brumback, for the motion.

Kingsbury & McGowan and Prickett & Lamb, contra.

MORGAN, C. J. In this case the appellants filed and served notice of appeal, both from the order refusing a new trial and from the judgment. The appeal in this case and the undertaking placed on file are precisely the same as the appeal and undertaking in the case of Mathison v. Leland, 1 Idaho, 712. The undertaking recites that the appellants are about to appeal from the judgment made and entered against them, and also from the order denying a new trial, and then undertakes to pay all costs and damages which may be awarded against them on the appeal or dismissal thereof, not exceeding $300. The court say, in Mathison v. Leland, supra

"It is evident that such an undertaking vers but one appeal, and it is impossible, upon an inspection of it, to determine to which appeal it applies. This being the case, we must hold that neither the appeal from the judgment nor from the order is well taker "

Upon the hearing of the motion to dismiss the appeal in this case, counsel for appellant stated that he had taken means to procure a good undertaking. The court, however, cannot determine in which appeal there is an insufficient undertaking, and in which there is The undertaking is therefore void for uncertainty. We think we must hold that there is no undertaking in either. The certificate of the clerk is also defective in not stating that an undertaking in

none.