which the notice was given, need not be noticed for a subsequent circuit or term, but must remain upon the calen dar, from court to court, until finally disposed of. But when an issue of law is to be tried before a judge out of court, no calendar need be made or note of issue furnished.

Amended Code, § 256.

An important change is proposed by the alteration of this section. It is to save the necessity of repeated notices of trial. If a cause be not tried, as it ought to be, at the first term, it must remain upon the calendar at subsequent terms, until reached. A similar practice exists in many of the states, where no inconvenience results from it.

§ 765. The issues on the calendar must be disposed of in the following order; unless, for the convenience of parties, or the despatch of business, the court otherwise direct;

1. Issues of fact to be tried by a jury:

2. Issues of fact to be tried by the court:

3. Issues of law.

Amended Code, § 257.

§ 766. Either party, after the notice of trial, whether given by himself, or by the adverse party, may bring the issue to trial, 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.

Amended Code, § 258.

§ 767. A separate trial, between the plaintiff and any of several defendants, may be allowed by the court, whenever, in its opinion, justice will be thereby promoted.

New. It may sometimes be highly just to parties, between whom an issue is joined, and who are ready for trial, to have their controversy determined, without waiting for the movements of other parties, over whom they have no control.

§ 768. A motion to postpone a trial for 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 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.

New; to prevent parties from obtaining delay by the unfounded pretence of absent witnesses.

§ 769. The plaintiff must furnish the court before the trial begins with a copy of the summons and pleadings, and the offer of the defendant, if any shall have been made.

§ 770. 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 jurors, until the jury is completed or the ballots are exhausted. If the ballots become exhausted before the jury is complete, the sheriff, under the direction of the court, must summon from the bystanders or the body of the county, so many qualified persons as to complete the jury.

The provisions of this chapter, for the most part, explain themselves. Those relating to challenges depend upon the same principles as in criminal actions. In the Code of Criminal Procedure, we have given all the explanations which appear to be necessary.

§ 771. As soon as the drawing of the jury is completed, an oath must be administered to each juror, that he will well and truly try the matter in issue between the plaintiff and the defendant,

and a true verdict give, according to the evidence.

§ 772. When the jury is completed and sworn, the ballots containing the names of the jurors sworn must be laid aside, till the jury so sworn is discharged, and then they must be returned to the box; and every ballot drawn containing the name of a juror not so sworn must be returned to the box as soon as the jury is completed.

§ 773. Either party may challenge the jurors, but when there are several parties on either side, they must join in a challenge before it can be made. The challenges are to the panel and to individual jurors, as in criminal actions, except that there can be but two peremptory challenges on each side. And the provisions of the Code of Criminal Procedure, on the subject of challenges, and the disposition thereof, omitting section 415, are to apply, so far as in their nature applicable and consistent with the provisions of this code, to challenges in civil actions and the disposition thereof, substituting "plaintiff" for "people" and for "person alleged to be injured by the offence charged or on whose complaint the prosecution was instituted."

SECTION 774.

ARTICLE I

CONDUCT OF THE TRIAF.

Order of proceedings on trial.

775. When a view may be ordered.

776. Manner of keeping jury.

777. If juror be taken sick, jury discharged.

778. The charge to the jury.

779. Manner of keeping jury while deliberating.

780. Court may order food and lodging for jurors, when deliberating.

781. What papers jury may take.

782. After retiring jurors may return for information.

783. If jury cannot agree, may be discharged.

784. If jury is discharged, a new trial to be had.

785. Court to be open until verdict or discharge.

786. If any juror is absent on return, the jury must be discharged.

787. Manner of announcing verdict.

788. Jury may be polled, or insufficient verdict corrected.

789. Verdict to be entered, and read to jury.

§ 774. When the jury has been completed and sworn, the trial must proceed in the following order, unless the court, for special reasons, otherwise directs:

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

2. The defendant may then open his defence, 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 defendant must commence, and the plaintiff conclude the argument to the jury: