provided in section one hundred and forty-three beyond the amount admitted in the certificate, or in any amount if the certificate was refused, judgment may be given against such garnishee for the value thereof in money. The garnishee may at any time before judgment discharge himself by delivering, paying, or transferring the property to the marshal. Execution witnesses on trial. SEC. 160. Executions may issue upon judgments against a garnishee as upon ordinary judgments between plaintiff and defendant, and costs against garnishee; and disbursements shall be allowed and recovered in like manner. Witnesses, including the defendant and garnishee or officer thereof, may be required to appear and testify upon such proceeding against a garnishee, as upon the trial of an issue of fact. SEC. 161. The court or judge thereof in its discretion may at the time of the application of the plaintiff for the order provided for in section one hundred and forty-three and at any time thereafter before judgment against the garnishee, by order restrain the garnishee from paying, transferring, or in any manner disposing of or injuring any of the property of the defendant, alleged by the plaintiff to be in the garnishee's possession, control, or owing by him to the defendant, and disobedience to such order may be punished as a contempt. SEC. 162. The proceedings provided for in chapters twelve, thirteen, and fourteen of this title shall be known as provisional remedies. SEC. 163. Issues arise upon the pleadings when a fact or conclusion When restrain ing order may be allowed against garnishee. What proceedings known as provisional remedies. The different of law is maintained by the one party and controverted by the other. kinds of issues. They are of two kinds First. Of law; and, Second. Of fact. SEC. 164. An issue of law arises upon a demurrer to the complaint, answer, or reply, or to some part thereof. SEC. 165. An issue of fact arises First. Upon a material allegation in the complaint controverted by the answer; or, or. Second. Upon new matter in the answer controverted by the reply; Third. Upon new matter in the reply, except an issue of law is joined thereon. SEC. 166. Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases the issues of law shall be first tried, unless the conrt otherwise direct. SEC. 167. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact. SEC. 168. An issue of law shall be tried by the court, unless referred as provided in chapter twenty. An issue of fact shall be tried by a jury, unless tried by the court or referred as provided in chapters nineteen and twenty. Issue of law. Issue of fact. When both is sue of law and fact arise, issue of law to be first tried. Trial defined. Issues, how tried. Motion to post SEC. 169. A motion to postpone a trial on the ground of the absence of evidence shall only be made upon affidavit showing the materiality pone trial on acof the evidence expected to be obtained, and a statement of facts count of absent showing that due diligence has been used to procure it, and also the SUP R S VOL 2- -82 evidence. name and residence of the witness or witnesses. 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 shall not be postponed. The court, when it allows the motion, may impose such conditions or terms upon the moving party as may be just. Trial jurors, how selected. Formation of jury. No challenge to panel. Peremptory Sec. OF THE FORMATION OF THE JURY. 170. Trial jurors, how selected. 172. No challenge to panel. 173. Peremptory challenge defined. Sec. 180. Number of challenges. 181. First challenge taken by defendant; when taken. 182. Order of taking challenge. 183. Trial of challenge. 184. Proceedings in evidence on trial of 185. Challenge may be oral. SEC. 170. Jurors for the trial of issues of fact in the district of Alaska shall be selected and summoned in the manner prescribed by the laws of the United States with respect to jurors of the United States district and circuit courts, and shall have the same qualifications and be entitled to the same exemptions as are provided by law in the case of grand juries to serve in the district, it being the true intent and meaning of this section that but one jury shall be summoned for the trial of all actions, civil and criminal, triable by the district court of the district. SEC. 171. Trial juries in civil actions shall be formed as follows: When the action is called for trial, the clerk shall draw from the trial jury box of the court, one by one, the ballots containing the names of the jurors until the jury is completed or the ballots are exhausted. If the ballots become exhausted before the jury is complete, the marshal, under the direction of the court, shall summon from the bystanders, or the body of the district, as the court may direct, so many qualified persons as may be necessary to complete the jury. Whenever, as in this section provided, the marshal shall summon more than one person at a time from the bystanders or the body of the district, he shall return a list of the persons so summoned to the clerk. The clerk shall write the names of such persons upon separate ballots, and deposit the same in the trial jury box, and then draw such ballots therefrom, as in the case of the panel of trial jurors for the term. The jury shall consist of twelve persons, unless the parties consent to a less number. Such consent shall be entered in the journal: Provided, That hereafter in trials for misdemeanors six persons shall constitute a legal jury. SEC. 172. No challenge shall be made or allowed to the panel. A challenge is an objection to a particular juror, and may be either— First. Peremptory; or, Second. For cause. SEC. 173. A peremptory challenge is an objection to a juror for challenge defined. which no reason need be given, but upon which the court shall exclude Challenge for cause defined. him. SEC. 174. A challenge for cause is an objection to a juror, and may be either First. General-that the juror is disqualified from serving in any action; or, Second. Particular-that he is disqualified from serving in the action on trial. SEC. 175. General causes of challenge are- Second. A want of any of the qualifications prescribed by law for a juror; Third. Unsoundness of mind, or such defect in the faculties of the mind or organs of the body as renders him incapable of performing the duties of a juror. SEC. 176. Particular causes of challenge are of two kinds: General causes of challenge. Particular causes First. For such bias as, when the existence of the facts is ascertained, of challenge. in judgment of law disqualifies the juror, and which is known in this title as implied bias; Second. For the existence of a state of mind on the part of a juror in reference to the action, or to either party, which satisfies the trier, in the exercise of a sound discretion, that he can not try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this title as actual bias. SEC. 177. A challenge for implied bias may be taken for any or all of the following causes, and no other: First. Consanguinity or affinity within the fourth degree to either party; Second. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant to the adverse party; or being a member of the family of, or a partner in business with, or in the employment for wages of the adverse party; or being surety or bail in the action called for trial, or otherwise, for the adverse party; Third. Having served as a juror on a previous trial in the same action, or in another action between the same parties for the same cause of action, or in a criminal action against either party upon substantially the same facts or transaction; Fourth. Interest on the part of the juror in the event of the action on the principal question involved therein. Challenge for implied bias. Challenge for SEC. 178. A challenge for actual bias may be taken for the cause mentioned in the second subdivision of section one hundred and actual bias. seventy-six. But on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon the merits of the cause from what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied from all the circumstances that the juror can not disregard such opinion and try the issue impartially. SEC. 179. An exemption from service on a jury shall not be cause of challenge, but the privilege of the person exempted. SEC. 180. A peremptory challenge or a challenge for cause may be taken by either party. When there are two or more parties, plaintiffs or defendants, they must join in the challenge or it can not be taken. Either party shall be entitled to three peremptory challenges and no more. SEC. 181. The defendant first and afterwards the plaintiff shall challenge for cause, and when a challenge has been sustained the vacancy shall be filled before further challenge is made, and any new juror may at any time be challenged for cause by either party to the action. When the panel is full, the defendant shall have one peremptory challenge, followed by one by the plaintiff, and so on alternately until each side has exhausted its right to such challenge. SEC. 182. The challenges of either party shall be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class: First. For general disqualification; Second. For implied bias; Third. For actual bias; Fourth. Peremptory; but either party may take peremptory challenge at any time before his right of challenge ceases. from service of Exemption jury. Number of challenges. First challenge taken by defendant; when taken. Order of taking challenges. Trial of chal lenge. Proceedings in SEC. 183. The challenge may be excepted to by the adverse party for insufficiency; and if so, the court shall determine the sufficiency thereof, assuming the facts alleged therein to be true. The challenge may be denied by the adverse party; and if so, the court shall try the issue and determine the law and the fact. SEC. 184. Upon the trial of a challenge the rules of evidence applievidence on trial cable to testimony offered upon the trial of an ordinary issue of fact of challenge. shall govern. The juror challenged, or any other person otherwise competent, may be examined as a witness by either party. If a challenge be determined to be suficient, or found to be true, as the case may be, it shall be allowed, and the juror to whom it was taken excluded; but if determined or found otherwise it shall be disallowed. SEC. 185. The challenge, the exception, and the denial may be made. orally. The judge of the court shall note the same upon his minutes, and the substance of the testimony on either side. Challenge may be oral. Oath of jury. Order of proceedings on the trial. SEC. 186. As soon as the number of the jury has been completed an oath or affirmation shall 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 the defendant, and a true verdict give according to the law and evidence as given them on the trial. SEC. 187. When the jury has been completed and sworn, the trial shall proceed in the order prescribed in this section, unless the court for special reasons otherwise direct. First. The plaintiff shall state briefly his cause of action, and the issue to be tried; the defendant shall then in like manner state his defense or counterclaim. Second. The plaintiff shall then introduce the evidence on his part, and when he has concluded the defendant shall do the same. Third. The parties may then respectively introduce rebutting evidence only, unless the court, for good reason, and in furtherance of justice, permit them to introduce evidence upon the original cause of action, defense, or counterclaim. Fourth. Not more than two counsel shall be allowed to address the jury on behalf of the plaintiff or defendant unless otherwise allowed by the court; and the court may limit the time to be consumed by counsel in arguing the cause to the jury. Fifth. When the evidence is concluded, unless the case is submitted to the jury on both sides without argument, the plaintiff shall commence and conclude the argument to the jury. If the plaintiff waive the opening argument, and the defendant then argue the case to the jury, the plaintiff shall not be permitted to reply to the argument of the defendant. Sixth. The court shall then charge the jury, and if either party require it, and shall at the commencement of the trial give notice of his intention so to do, the charge of the court, so far as it relates to the law and the facts of the case, shall be reduced to writing and given to the jury by the court as written, without any oral explanation. The charge, when reduced to writing, must be filed with the clerk. When a view SEC. 188. Whenever, in the opinion of the court, it is proper that the jury should have a view of real property which is the subject of the may be ordered. litigation, or of the place in which any material fact occurred, it may order the jury to be conducted in a body, in the custody of a proper officer, to the place, which shall be shown to them by the judge, or by a person appointed by the court for that purpose. While the jury are thus absent no person shall speak to them on any subject connected with the trial. Manner of keep SEC. 189. 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 ing jury. submission of the cause to them, be permitted to separate; in either case they may be admonished by the court that it is their duty not to converse with any other person, or among themselves, on any subject connected with the trial, or to express any opinion thereon, until the case is finally submitted to them. When juror SEC. 190. If, after the formation of the jury, and before verdict, a juror becomes sick, so as to be unable to perform his duty, the court taken sick, how to may order him to be discharged. In that case, unless the parties agree proceed. to proceed with the other jurors, a new juror may be sworn, and the trial may begin anew; or the jury may be discharged, as the court shall direct, and a new jury then or afterwards formed. The charge to SEC. 191. In charging the jury the court shall state to them all matters of law which it thinks necessary for their information in giving the jury. their verdict, but it shall not present the facts of the case, but shall inform the jury that they are the exclusive judges of all questions of fact. How jury kept sworn. SEC. 192. After hearing the charge the jury may either decide in the jury box or retire for deliberation. If they retire they must be while deliberatkept together in a room provided for them, or some other convenient ing; officer to be place, under the charge of one or more officers, until they agree upon their verdict or are discharged by the court. The officer shall, to the utmost of his ability, keep the jury thus together separate from other persons, without drink, except water, and withcut food, except ordered by the court. He must not suffer any communication to be made to them, nor make any himself unless by the order of the court, except to ask them if they have agreed upon their verdict, and he shall not, before the verdict is rendered, communicate to any person the state of their deliberation or the verdict agreed on. Before any officer takes charge of a jury this section shall be read to him, and he shall be then sworn to conduct himself according to its provisions, to the utmost of his ability. Food and lodg SEC. 193. If while the jury are kept together, either during the progress of the trial or after their retirement for deliberation, the ing of jurors. court order them to be provided with suitable and sufficient food and lodging, they shall be so provided by the marshal, at the expense of the United States. What papers SEC. 194. Upon retiring for deliberation the jury may take with them the pleadings in the cause, and all papers which have been received jury may take. as evidence on the trial (except depositions, or copies of such parts of public records or private documents given in evidence as ought not, in the opinion of the court, to be taken from the person having them in possession). 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. |