In Fox v. West, Id., 782, the question in another form was again raised, considered by the court and 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 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 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.

EDDY ET AL. v. VAN NESS ET AL.

Filed February 17, 1885.

UNDERTAKING ON APPEALS-DISMISSAL OF APPEAL.-When two appeals are taken, one from the judgment, and the other from the 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.

Motion to dismiss an appeal from the second judicial district court of Alturas county.

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 three hundred dollars.

The court say, in Mathison v. Leland, supra: It is evident that such an undertaking covers 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 taken.

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 none. 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 due form, was properly filed, and the clerk could not make such certificate, since no undertaking, in due form, was ever filed.

Appeal dismissed.

BUCK, J., and BRODERICK, J., concurred.

UNITED STATES v. KUOK WAH CHIO.

Filed February 17, 1885.

JURY TRIAL IN CRIMINAL CASE-IMPANELLING JURY-CHALLENGING.-Under our civil practice act the method of impaneling a trial jury in a criminal action is different from that of impanelling a trial jury in a civil case under our code of civil procedure. In impanelling a jury in a criminal action, the court may require the parties to exercise 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 twelve names before any challenges are interposed; and after these are examined for cause and passed upon, draw others to take the place of those 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. 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 the appellant.

Huston & Gray, for the respondent.

BY THE COURT, BUCK, J., BRODERICK, J., and MORGAN, C. J., CONCURRING. 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 twelve 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 to 180, inclusive.

Section one hundred and nine directs that when an action is called for trial, such proceedings shall be had in impaneling a trial jury, as are prescribed in the civil code, and section one hundred and eleven 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 one hundred and nine and one hundred and eleven of the

code of civil procedure, if not contradictory, have at least a 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 twenty-three of our civil code and in criminal actions in the criminal practice act from sections three hundred and eighteen to three hundred and fifty-three inclusive.

Section three hundred and thirteen 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 one hundred and eleven of the code of civil procedure. Section three hundred and thirty-two of the criminal practice act provides, "that a challenge to an individual juror is either peremptory or for cause.

Section three hundred and thirty-three 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 three hundred and seventy-seven 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 four 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 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 twelve 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 lawmaking power has attempted to guard against this evil, as far as possible, by placing the juror, from the time he is accepted by 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 enactment does not modify the method of impaneling the jury. The appellant also assigns as error the admission, under objection, 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 objection, and no exception is taken to the ruling of the court, the objection is waived: Turner et al. v. Tuolumne Water Co., 25 Cal., 398.

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

CREWS v. BAIRD, SHERIFF OF NEZ PERCE COUNTY.

Filed February 21, 1885.

STATEMENT WHEN INSUFFCIENT. --A paper inserted in the record denominated a statement and which does not appear to have been settled and signed by the trial judge, is no part of the judgment roll, and cannot be considered in this court on appeal.

THE COMPLAINT HEREIN HELD SUFFICIENT to support the judgment.

APPEAL from the first judicial district court of Nez Perce county. Ezra Baird, in pro. per., for the appellant.

J. W. Poe and W. T. McKern, for the respondent.

CURRING.

BY THE COURT, BRODERICK, J., MORGAN, C. J., AND BUCK, J., CONIn this case the appellant contends that the verdict of the jury is against the evidence and we are asked to examine this question.

That which purports to be a statement of the evidence and exceptions thereto, was not settled and signed by the district judge. That the settling and signing of the statement is mandatory, and its omission fatal, is a proposition that cannot be disputed. Without this authentication the statement cannot be treated as part of the judgment roll, nor be considered in this court.

The only question properly presented for our consideration is, whether the complaint is sufficient to support the judgment. We think it is. The complaint alleges the wrongful taking of the property in question, the detention, the demand and damages for wrongful withholding the same.

We think this sufficient.
Judgment affirmed.

MILLS v. GLENNON ET AL.

Filed February 23, 1885.

ACTION ON ACCOUNT-COMPLAINT ITEMS NEED NOT BE ALLEGED.-In an action for a balance of account, on a general account for labor done, money paid and goods sold, it is not necessary to set forth in the complaint the amount of each separate item. The account constitutes but one cause of action, and the statement of the general balance due is sufficient. CHATTEL MORTGAGE-SALE OF MORTGAGED PROPERTY-CONSENT OF MORTGAGEE.-Under the statutes of this territory making the willful sale of property upon which there is a chattel mortgage, without the written consent of mortgagee, larceny, and declaring said sale void, evidence of an oral consent of the mortgagee of the sale of such property, is admissible as explaining the intention of the mortgagor in making such sale.

COPY OF ACCOUNT BOOKS WHEN ADMISSIBLE IN EVIDENCE.-True and correct transcripts of original account books with proofs aliunde as to the items thereof, may be admitted in evidence when the original books have been accidentally destroyed by fire.

APPEAL from the second judicial district court of Boise county. George Ainslee and J. H. Hawley, for the appellant.

Huston & Gray and Prickett & Lamb, for the respondent.

BUCK, J. This action sets forth in the complaint two causes of action. First, a balance on account, and second, damages for breach of contract,