if, to determine the amount of damages, the examina- Same. tion of a long account be involved, by a reference as above provided; 3. In actions where the service of the summons was by publication, the plaintiff, upon the expiration of the time for answering, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the Court must thereupon require proof to be made of the demand mentioned in the complaint; and if the defendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. CHAPTER III. ISSUES THE MODE OF TRIAL AND POSTPONEMENTS. SECTION 588. Issue defined, and the different kinds. 589. Issue of law, how raised. 590. Issue of fact, how raised. 591. Issue of law, how tried. 592. Issue of fact, how tried. When issues both of law and fact, the former to be first disposed of. 593. Clerk must enter causes on the calendar, to remain until 594. Parties may bring issue to trial. 595. Motion to postpone a trial for absence of testimony, requisites of. 596. In cases of adjournment a party may have the testi- Issue defined, and the different 588. (§ 151.) Issues arise upon the pleadings when a fact or a conclusion of law is maintained by the one party and is controverted by the other. They are of kinds. two kinds: 1. Of law; and, 2. Of fact. Issue of law, how raised. Issue of fact, how raised. Issue of law, how tried. Issue of fact, how tried. When issues both of law and fact, the former to be first disposed of. Clerk must enter causes on the calendar, to remain until 589. (§ 152.) An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. 590. (§ 153.) 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. 591. (§ 154.) An issue of law must be tried by the Court, unless it is referred upon consent. 592. (§ 155.) An issue of fact must be tried by a jury, unless a jury trial is waived, or a reference be ordered, as provided in this Code. Where there are issues both of law and fact, the issue of law must be first disposed of. 593. (§ 156.) 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 gendisposed of. eral or special term, if not tried or heard at such term, must remain upon the calendar from Court to Court, until finally disposed of. Parties may bring issue to trial. Motion to postpone absence of testimony, requisites of. 594. (§ 157.) 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. 595. (§ 158.) A motion to postpone a trial on the a trial for 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. adjourn party may testimony of any taken. 596. (§ 664.) The party obtaining a postpone- In cases of ment of a trial in any Court of record must, if required ment a by the adverse party, consent that the testimony of have th any witness of such adverse party, who is in attend- witness ance, 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. CHAPTER IV. TRIAL BY JURY. ARTICLE I. FORMATION OF Jury. II. CONDUCT OF THE TRIAL. III. THE VERDICT. ARTICLE I. FORMATION OF THE JURY. SECTION 600. Jury, how drawn. 601. Challenges. Each party entitled to four peremptory challenges. 602. Grounds of challenge. 603. Challenges, how tried. 604. Jury to be sworn. drawn. 600. (§ 159.) When the action is called for trial Jury, how 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. Challenges. 601. (§ 161.) 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 challenges. entitled to four peremptory challenges. Each party entitled to four peremptory Grounds of challenge. Challenges, how tried. Jury to be sworn. 602. (§ 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 this Code to render a person competent as a juror; 2. Consanguinity or affinity, within the third 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 the interest of the juror as a member or citizen of a municipal corporation; 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. 603. (§ 163.) 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. 604. (§ 160.) As soon as the jury is completed, an oath must be administered to the jurors, in sub stance, that they and each of them will well and truly defendant, and a true verdict render according to the evidence. ARTICLE II. CONDUCT OF THE TRIAL. SECTION 607. Order of proceeding on trial. 608. Charge to the jury. Court must furnish in writing, 609. Special instructions. 610. View by jury of the premises. 611. Admonition when jury permitted to separate. 612. Jury may take with them certain papers. 613. Deliberation of jury, how conducted. 614. May come into Court for further instructions. 615. Proceedings in case a juror become sick. 616. When prevented from giving verdict, the cause may be again tried. 617. While jury are absent, Court may adjourn from time 618. Verdict, how declared. Form of. Polling the jury. 607. When the jury has been sworn, the trial must proceed in the following order, unless the Judge, for special reasons, otherwise directs: 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; Order of proceeding on trial. |