mony or other proceedings on the trial, taken by them, or any of them, but none taken by any other person.

When the case is finally submitted to the jury, they may decide in court, or retire for deliberation; if they retire, they must be kept together in some convenient place under the charge of an officer, until at least three-fourths of them agree upon a verdict or until they are discharged by the court. If three-fourths of them are unable to agree on a verdict, they may be discharged by the court.

Unless by order of the court, the officer having the jury in charge must not suffer any communication to be made to them, or make any himself, except to ask them if they, or three-fourths of them, have agreed upon a verdict; and he must not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.

After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed on any point of law arising in the case, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or notice to, the parties or counsel.

If, after impanelling the jury, and before the verdict a juror becomes 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, with the consent of the parties to the action; or another juror may be sworn and the trial begin anew; or the jury may be discharged, and another jury impanelled.

In all cases where the jury are discharged, or prevented from giving a verdict by reason of accident or other cause during the progress of the trial, or after the cause has been submitted to them, the action may be again tried immediately, or at a future time as the court may direct.

While the jury are absent, the court may adjourn from time to time in respect to other business; but it is, nevertheless, open for every purpose connected with the cause submitted to the jury, until a verdict is rendered, or the jury discharged.

The court may direct the jury to bring in a sealed verdict, at the opening of the court, in case of an agreement, during a recess or adjournment of the court for the day.

When the jury, or three-fourths of them, have agreed upon a verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman; the verdict must be in writing signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict. Either party may require the jury to be polled, which is done by the court or clerk asking each juror if the verdict is his verdict; if upon such inquiry or polling, more than one-fourth of the jurors disagree thereto, the jury must be sent out again, but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case.

When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may again be sent out.

The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so presented, that nothing shall remain to the court, but to draw from them conclusions of law.

In an action for the recovery of money only, or specific real property, the jury in their discretion may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing upon all or any of the issues, and in all cases may instruct them, if they render a general verdict. to find on particular questions of fact to be stated in writing, and may direct a written finding thereon. The special verdict or finding must be filed with the clerk and entered upon the minutes. When a special finding of facts is inconsistent with the general verdict, the former controls the latter and the court must give judgment accordingly.

When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant, when the counter claim for the recovery of money is established exceeding the amount of the plaintiff's claim as established, the jury must find the amount of the recovery.

In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury, if their verdict be in favor of the plaintiff, or, if being in favor of the defendant, and they also find that he is entitled to a return thereof, must find the value of the property, and, if so instructed, the value of specific portions thereof, and may at the same time assess the damages, if any are claimed in the complaint or answer which the prevailing party has sustained by reason of the taking or detention of such property.

Upon receiving a verdict, an entry must be made by the clerk in the minutes of the court specifying the time of the trial, the names of the jurors and witnesses and setting out the verdict at length, and where a special verdict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consideration, the order thus reserving it.8

The prevailing party must pay the jury fee; and he can include the amount of such fee in his memorandum of costs, if he be entitled to costs.

In case the jury be for any cause discharged without finding a verdict, the fees of the jury must be paid by the party who demanded the jury, but may be recovered as costs if he afterwards obtain judgment, provided he is entitled to costs.9

8. Code of Civil Procedure, Secs. 600, 628.

9. Statutes of 1871-2, p. 188.

CHAPTER XXXII.

OF JUDGMENTS.

A judgment is the final determination of the rights of the parties in an action or civil proceeding.1

A judgment in the Superior Court, is interlocutory, or final. An interlocutory judgment is a determination of the rights of parties first made, as in action for a dissolution of a partnership and for an accounting, and in an action for the partition of property; and an appeal from an interlocutory judgment is taken by an appeal from an interlocutory judgment from which an appeal can be taken.

While proceedings are pending for the review of a judgment, either on an appeal or on a motion for a new trial, or until the time to appeal has expired, the judgment is not a final determination of the rights of the parties, although it may be final for the purpose of an appeal.2

A judgment in a civil action is not final so long as the time for an appeal has not expired, nor during the pendency of such appeal, if taken;3 and until it is final, it cannot be pleaded as a bar in a subsequent action involving the same matters; nor can it be used as evidence in bar in another action for the same cause.5

An action is deemed to be pending from the time of its commencement until its final determination upon an appeal, or until the time for an appeal has passed unless the judgment is sooner satisfied.6

1. Code of Civil Procedure, Sec. 577.

2. Gillmore v. American C. I. Co., 65 Cal. 63.

3. Story v. Story and Isham C. Co., 100 Cal. 41.

4. Brown v. Campbell, 100 Cal. 636.

5. Harris v. Barnhart, 97 Cal. 546.

6. Code of Civil Procedure, Sec. 1049.

BUDD--13

A judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves.7

In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, when a several judgment is proper.8

The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint, and embraced in the issue.9

An action may be dismissed or judgment of non suit entered by the plaintiff before trial, by a written request to the clerk, upon payment of costs, provided a counter claim has not been made, or affirmative relief has not been sought by a counter claim or answer of the defendant. On such dismissal, if a provisional remedy has been allowed, the undertaking must be delivered by the clerk to the defendant, who may have his action thereon; by either party upon the written consent of the other; by the court, when the plaintiff fails to appear on the trial and the defendant appears and asks for the dismissal; by the court, when upon the trial and before the final submission of the case the plaintiff abandons it; by the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury; by the court, when after the verdict, or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months; and by the court, unless summons shall have been issued within one year, or unless the summons shall have been served and a return thereon made within three years after the commencement of the action, unless an appearance has been made by the defendant or defendants,