2. That a jury has just tried a case involving the liability of defendant for a similar cause of action, depending on the same general considerations, does not render the jury incompetent to sit in the subsequent case. Algier v. Steamer Maria, 14 Cal. 167.

3. Third subdivision.-It has always been considered a principal cause of challenge to a juror, that he is a tenant of either of the parties to a suit. Hathaway v. Helmer, 25 Barb. 29.

4. Sixth subdivision.—That a juror has read or heard a statement of the facts of a case, does not, of itself, disqualify him, under the statute; for he may not have formed or expressed an "unqualified opinion." A mere impression or suspicion derived from such reading or hearing, does not disqualify. The juror must have reached a conclusion, like that upon which he would be willing to act in ordinary matters. People v. Reynolds, 16 Cal. 138.

5. In an action of ejectment, a juror who has formed an opinion adverse to the validity of title under which defendants claimed, is an incompetent juror. White v. Moses, 11 Cal. 68.

6. A verdict of a jury will not be set aside on the ground that one of the jurors "knew and was aware of the circumstances connected with the affair," the subject matter of the suit, where no objection to him was raised until after the verdict was rendered, and it not appearing that he had formed or expressed an opinion before the trial, or was in any way biased in favor of plaintiff. Lawrence v. Collier, 1 Cal. 37.

7. A juror who, upon a statement of facts submitted by a plaintiff, has expressed an opinion as to the liability of the defendant, is not indifferent, and upon challenge will be excluded from the panel. Rogers v. Rogers, 14 Wend. 131.

8. Seventh subdivision.-The law contemplates that every juror who sits in a cause shall have a mind free from all bias or prejudice of any kind; and if a juror is prejudiced in any manner, he is not a proper person to sit in the jury box. People v. Reyes, 5 Cal. 347.

9. Prejudice is a state of mind which, in the eye of the law, has no degrees. Id. 10. A juror being challenged for bias, was examined before triers, and asked the following questions: 1st. Are you not a member of a secret and mysterious order, known as and called Know Nothings, which has imposed on you an oath or obligation, beside which an oath administered to you in a Court of Justice, if in conflict with that oath or obligation, would be by you disregarded? 2d. Are you a member of any secret association, political or otherwise, by your oaths or obligations to which any prejudice exists in your mind against Catholic foreigners? 3d. Do you belong to any secret political society, known as, and called by the people at large in the United States, Know Nothings? and if so, are you bound by an oath, or other obligation, not to give a prisoner of foreign birth, in a Court of Justice, a fair and impartial trial? Held, that the Court erred in ruling out these questions. Id.

11. If the juror has taken such oaths as are referred to, he was grossly unfit to sit as a juror. Id.

§ 163. To be tried by the Court.

Witnesses may be examined.

Challenges for cause shall be tried by the Court. The juror challenged, and any other person, may be examined as a witness on the trial of the challenge.

1. Where a Judge, by consent of parties, acts as trier, upon the challenge of a juror to the favor, his rejection of evidence offered in support of the challenge, as immaterial, is final, as would be the decision of a trier on such evidence, and it cannot be reviewed. Costigan v. Cuyler, 21 N. Y. (7 Smith) 134.

14

ARTICLE II.

CONDUCT OF THE TRIAL.

SEC. 164. Proceedings in case a juror become sick. 165. Charge to the jury; Court shall furnish in writing, upon request, the points of law contained therein. 166. Jury may decide in Court, or retire for deliberation. Duty of the officer in charge.

167. Jury may take with them certain papers.

168. May come into Court for further instructions.
169. When jury are prevented from giving verdict the
cause may be again tried.

170. While jury are absent the Court may adjourn from
time to time. Sealed verdict. Final adjournment

discharges the jury.

171. The jury having agreed upon a verdict, shall declare

the same.

172. Informal or insufficient verdict may be corrected under advice of the Court.

173. Verdict shall be recorded in full in the minutes.

§ 164. Proceedings in case a juror become sick.

If, after the impanneling of the jury, and before verdict, a juror become sick, so as to be unable to perform his duty, the Court may order him to be discharged. In that case, the trial may proceed with the other jurors, or a new jury may be sworn, and the trial begin anew; or the jury may be discharged, and a new jury then or afterwards impanneled.

1. The withdrawal of a juror and the continuance of a case thereby, is no ground for reversing a judgment subsequently obtained. Benedict v. Cozzens, 4 Cal. 381.

§ 165. Charge to the jury; Court shall furnish in writing, upon request, the points of law contained therein.

In charging the jury, the Court shall state to them all matters of law which it thinks necessary for their information in giving their verdict; and if it state the testimony of the case, it shall also inform the jury that they are the exclusive judges of all questions of

fact. The Court shall furnish to either party at the time, upon request, a statement in writing of the points of law contained in the charge; or shall sign at the time a statement of such points prepared and submitted by the counsel of either party.

1. Instructions should conform to the pleadings and the facts.-Instructions to the jury are properly refused when not warranted by the pleadings. Thompson v. Lee, 8 Cal. 275.

2. In this case, the answer being insufficient as a denial of the allegations in the complaint, and the Court having instructed the jury to find for plaintiff: Held, that the instruction was right-no evidence being required on the part of plaintiff. Kuhland v. Sedgwick, 17 Cal. 123.

3. An instruction asked for is properly refused when there is no evidence on the question of fact embraced in it. People v. Harley, 8 Cal. 390.

4. Instructions in civil and criminal cases should be drawn with some slight reference to the case as made by the evidence. People v. Roberts, 6 Cal. 217.

5. An instruction of the Court to the jury must be adapted to the facts of the case. People v. Honshell, 10 Cal. 87.

6. Where no question of jurisdiction of Courts is raised by the pleadings, it is error to intruct the jury "that if they believe a certain fact they must find for the defendant, as the existence of that fact will establish a want of jurisdiction over the case," because, as the pleadings stand, such a verdict is a complete bar to another action, to which the plaintiff is entitled in another Court, if the verdict against him was rendered in pursuance of such an instruction. Fairbanks v. Woodhouse, 6 Cal. 433.

7. Questions of fact must be entirely left to the jury.-It is error for the Court to charge the jury as to a question of fact, or as to the weight of evidence. Battersby v. Abbott, 9 Cal. 565.

8. The constitutional right of the Court "to state the testimony" to the jury, would hardly authorize a Judge to express his opinion as to its effect. Seligman v. Kalkman, 8 Cal. 216.

9. Where the plaintiff's case does not depend alone on the evidence mentioned in the instruction requested by the defendant, it was properly refused. Pearson v. Snodgrass, 5 Cal. 479.

10. A jury should make up their verdict from the facts according to the law as given to them by the Court; and it seems that it is improper for a Court to charge the jury" to take into consideration all of the facts and do equal justice between the parties," inasmuch as an instruction so general in its terms may mislead them. Per HASTINGS, C. J. Kelly v. Cunningham, 1 Cal. 365.

11. How far it is necessary and proper for the Judge to refer to and comment upon the evidence in the charge, is a question of discretion. Poler v. N. Y. C. R. R., 16 N. Y. 476.

12. It is not error for the Judge to intimate an opinion on a question of fact, if the determination of the question is left by him to the jury. Althrop v. Wolf, 2

Hilt. 344.

13. The Judge is not at liberty to state his opinion on any question, on the supposition that it is a question of law, and afterwards to submit it to the jury as a question of fact. If it is a matter of fact in dispute, he has no right to state his conclusion thereon; if it is a matter of law, he has no right to leave it to the jury. Vedder v. Fellows, 20 N. Y. (6 Smith) 126.

14. Instructions as to abstract questions of law.-It is not error for a Court to refuse an instruction asked, stating an abstract or general proposition of law, when it has already so charged the jury as to embrace such proposition, or so much of it as is applicable to the case. Fairchild v. The California Stage Co., 13 Cal. 599.

15. Where a party asks an abstract proposition of law, by way of instruction to a jury, he takes the risk of its being correct in all its parts. Thompson v. Paige,

16 Cal. 77.

16. A Judge is bound to instruct a jury upon each proposition of law submitted to him by counsel, bearing upon the evidence. Zabriskie v. Smith, 3 Kern. 322.

17. The Court should refuse to instruct the jury on abstract questions of law. Fowler v. Smith, 2 Cal. 39; Id. 387; Branger v. Chevalier, 9 Id. 353.

18. It is not incumbent on the Court to instruct the jury upon mere abstract questions of law, irrelevant to the case, as serving only to bewilder and mislead them from the true issue to be determined. Fowler v. Smith, 2 Cal. 45.

19. Whether an instruction, giving the general rule, without qualification, be proper or not, depends on the facts in proof, and the charge would be right or wrong according to the circumstances of the given case. People v. Arnold, 15 Cal. 482.

20. It is not error in a Court to refuse to give to the jury an instruction which embraces a question which came properly before the Court, and not before the jury. Branger & Driard v. Chevalier, 9 Cal. 353.

21. Court should give or refuse instructions as asked for.The Court should give or refuse instructions to the jury as asked for, and though the phraseology may be modified to make it more intelligible, yet the sense must not be altered. Conrad v. Lindley, 2 Cal. 172; Jamson v. Quivy, 5 Id. 491; Russell v. Amador, 3 Id. 403.

22. Held, that where an instruction asked by defendant, if given entire, would have been erroneous, the Court was not bound to separate the concluding clause and give that by itself, and was therefore right in refusing the instruction. Smith v. Richmond, 19 Cal. 476.

23. The Court may refuse to give instructions already substantially given.-The Court may refuse to give an instruction, on the ground that it has been already substantially given by the Court. Belden v. Henriquez, 8 Cal. 87.

24. If an instruction be refused for the reason that it has already been given, the reason of the refusal should be stated so as not to mislead the jury. People v. Ramirez, 13 Cal. 152.

25. Where equivalent instructions are given and refused, the Court should place its refusal on the ground that equivalent instructions were given. Unless this is done the jury may be misled. People v. Hurley, 8 Cal. 390.

INSTRUCTIONS IN PARTICULAR CASES.

26. Actions affecting real estate. It was error for the Court to instruct the jury "that where a person injuriously slanders the title of another, malice is presumed." It was also error to instruct them that fraud could not be presumed, but may be established by circumstances, but not of a light character; the circumstances must be of a most conclusive nature. McDaniel v. Baca, 4 Cal. 326.

27. Where the complaint does not charge the mortgagee in possession with negligence or improper conduct in the leasing the mortgaged premises, but requires him to account for the rents he actually received, it is proper in the Court to refuse to instruct the jury that he might have leased the property differently, and to charge him with what he might have received, if so leased. Benham v. Rowe, 2 Cal. 387. 28. An instruction to the jury "to find for the defendant, as plaintiff has failed to prove a redemption," is clearly erroneous. The question of redemption was the main point in issue. Battersby v. Abbott, 9 Cal. 565.

29. In an action for use and occupation, the Court was asked to instruct the jury, "that it was necessary, to enable the plaintiff to recover, that he should show that the defendant used and occupied the premises by the permission of the plaintiff, and if the jury believe the defendant used and occupied the same against the will of the plaintiff, that they must find a verdict for the defendant," which the Court refused: Held, that in this the Court erred. Sampson v. Shaeffer, 3 Cal, 196.

30. In an action for the recovery of a portion of a tract of land, both parties relying on possession, and the defendant proving a prior possession by actual inclosure of the entire tract, it was error to instruct the jury that the defendant's posses sion was not valid, unless in conformity with the Preemption Laws of the United States, or the Possessory Law of this State. Bradshaw v. Treat, 6 Cal. 172.

31. When a private survey is admitted as a diagram, but not as evidence, the Court should clearly explain to the jury the precise purpose and effect of its admission. Rose v. Davis, 11 Cal. 133.

32. An instruction to the jury that they must take the grant and map together, and if they believe the land in controversy within the grant, as explained by the map, they will find for the plaintiff: Held, to be correct. Ferris v. Coover, 10 Cal.

589.

33. It is error for the Court to instruct the jury that before the plaintiff can recover, the evidence must specifically fix and establish the eastern boundary line of the grant under which plaintiff claimed, when it appears from the evidence that the land in controversy is within that boundary line. The precise location of that line is of no moment. Seaward v. Malotte, 15 Cal. 307.

34. Where the defendants deny ownership in plaintiff, and set up ownership in themselves, it is not error to instruct the jury that the only question for them to determine is as to who has the better right to the premises. Such instruction does not imply that plaintiffs can recover, even if they do not establish, prima facie, a title. Busenius v. Coffee, 14 Cal. 91.

35. In ejectment, where the title is of record and wholly documentary, the Court may declare the effect of the papers offered by plaintiff, and instruct the jury that plaintiff has made out his title, if they believe the land to be within the boundaries of a grant under which plaintiff claims. McGarvey v. Little, 15 Cal. 27.

36. In ejectment, the Court having admitted in evidence, as sufficiently proven, the mesne conveyances through which plaintiff traced title the defendants being mere trespassers-charged the jury "that the written evidence of title, together with the admissions of the parties, authorized them to find for the plaintiff, since the execution of the papers had been passed upon by the Court: Held, to be no objection to this instruction that it does not leave the execution and delivery of the conveyances to the jury; that the sufficiency of their execution was a matter addressed solely to the Court, and that-no question being raised during the trial as to their delivery and no evidence being offered to rebut the presumption of delivery arising from their possession by plaintiff-the instruction amounted only to an announcement of the law as to the effect of the conveyances and of the admissions of the defendants. Stark v. Barrett, 15 Cal. 373.

37. Held, further, that if it had been objected to this instruction that it took from the jury the question of damages for rents and profits, the objection would have been tenable; but that, no such objection being taken, the point must be regarded as waived, although the jury awarded such damages. Id.

38. Ejectment for land as a homestead. The husband alone had executed a deed to defendant. There was evidence tending to show that the premises were never occupied by plaintiffs with the intention of making them the homestead, and also evidence tending to prove an abandonment of their occupancy, and a residence on other property as that of the family. The Court below submitted a series of questions to the jury for a special verdict, the first of which was: Did the plaintiffs ever dedicate and set apart the real estate described in the complaint as a homestead, by living upon it with the intention so to dedicate it? and told the jury if they answered this question in the negative, the answer would constitute their entire verdict, but if they found in the affirmative, they should then proceed to answer the other questions: Held, that such direction was proper, as a negative answer to this question was conclusive against a recovery, and that such directions are convenient in practice, and no abuse of discretion. Broadus v. Nelson, 16 Cal. 79. 39. Where, in ejectment, plaintiff asked the Court to instruct the jury "that lapse of time does not constitute an abandonment, but that it consists in a voluntary surrender and giving up of the thing by the owner, because he no longer desires to possess it, or thereafter to assert any right or dominion over it ;" and the instruction was given with the qualification that lapse of time constitutes the material element in the question of abandonment: Held, that it would be more exact to say that lapse of time constitutes a material element to be considered in deciding the question of abandonment, but that the instruction given and the qualification are, in connection, the same in effect. Lawrence v. Fulton, 19 Cal. 683.

40. Actions concerning mining claims.-In an action for diverting water from plaintiff's ditch-plaintiff and defendants both having ditches supplied from the same stream, the plaintiff's rights being prior and paramount-defendants asked the Court to instruct the jury that if defendants had brought water from foreign sources and emptied it into the stream with the intention of taking it out again, they had the right to divert the quantity thus emptied in, less such amount