litigant in the matter of preserving their objections and exceptions. And if a party omits this requirement, or suffers the opposing party to do so without objecting in apt time, he will not be heard afterwards to complain of the omission.322 The statute of New Mexico,322a requiring the court to number its instructions is merely directory, and failure to comply with its provisions will not justify a reversal, it appearing that no rights of the parties were affected thereby.828 § 1238. Misleading and erroneous instructions. Where a person is in possession of a stock of goods, not only as mortgagee, but as vendee, an instruction as to the fraudulent character of the mortgage, ignoring the sale, is misleading.324 An instruction virtually assuming the testimony of a party to a material fact to be true charges the jury with respect to a matter of fact, and is erroneous. 325 The giving of instructions at variance with the evidence, or not warranted by it, is clearly erroneous, 326 and a subsequent correct instruction does not cure the error.327 In no case would it be proper to instruct the jury that if there is some evidence in favor of the plaintiff's side of the case, whether it be little or great, it is their duty to find for the plaintiff. 328 In an action to recover upon an express contract for the sale of logs, an instruction that if defendant had converted the logs to its own use it would be liable for their value, is erroneous. Under the Oregon statute, it is error for the court to charge the jury as to the effect and value of certain of the evi 329 322 Moffatt v. Tenney, 17 Colo. 189, 30 Pac. 348. And see Wray v. Carpenter, 16 Colo. 271, 25 Am. St. Rep. 265, 27 Pac. 248; Denver etc. Railroad Co. v. Ryan, 17 Colo. 98, 28 Pac. 79. 322a Comp. Laws, § 2059. 323 Miller v. Preston, 4 N. Mex. 314, (396), 17 Pac. 565. 324 Chandler v. Colcord, 1 Okla. 260, 32 Pac. 330. As to misleading instruction as to amount of recovery in action on special contract, see Mattingly v. Roach, 84 Cal. 210, 23 Pac. 1117; Edison etc. Co. v. Navigation Co., 8 Wash. 370, 40 Am. St. Rep. 910, 36 Pac. 260, 24 L. R. A. 315. As to misleading instruction on question of rescission of contract, see Gottstein v. Seattle Lumber etc. Co., 7 Wash. 424, 35 Pac. 133. 325 Vulicevich v. Skinner, 77 Cal. 239, 19 Pac. 424. See Elderkin v. Peterson, 8 Wash. 674, 36 Pac. 1089; Glenn v. Savage, 14 Or. 567, 13 Pac. 442. 326 Innis v. Carpenter, 4 Colo. App. 30, 34 Pac. 1011. See People v. Mauritzen, 84 Cal. 37, 24 Pac. 112; Allen v. Union Pacific R. R. Co., 7 Utah, 239, 26 Pac. 297. 327 Malone v. Sierra Ry. Co., 151 Cal. 113, 91 Pac. 522; Fogarty v. Southern Pacific Co., 151 Cal. 785, 91 Pac. 650. 328 Bunting v. Saltz, 84 Cal. 168, 24 Pac. 167. 329 Comegys v. American Lumber Co., 8 Wash. 661, 36 Pac. 1087. 332 dence given at the trial.330 The court has no right to direct as to the credence the jury shall give to any evidence submitted to them,331 nor, by an instruction, to convey the impression that a different number of witnesses testified to a certain fact, nor that the quality of the testimony must be considered more than the number of witnesses.333 An instruction good in itself but inapplicable to the issue being tried should not be given, as its tendency is to confuse the jury.334 In an action for damages for personal injuries, instructions should be clear and definite as to facts the existence of which would create a liability.335 Instructions invading the province of the jury are erroneous.336 So of instructions given on different theories.337 An instruction to a jury in a civil case, charging that they "should be satisfied by a clear preponderance of proof" before they can find certain facts, is not misleading, when the court has first charged the jury that "it is not required in a civil action to establish the facts beyond a reasonable doubt as in a criminal case, but a fair preponderance of proofs is all that is required." 838 And failure to fully instruct a jury is not ground of complaint for a party who offers and is granted defective instructions.339 An instruction that there was no evidence contradicting the testimony of the defendant as to a certain fact was held proper.340 An instruction which might have a broader meaning than was properly intended, but which did not in fact mislead the jury, is harmless to the appellant.341 So, in general terms, instructions are unobjectionable when they are sufficiently full, and, considered all together, state the law of the case clearly and correctly, and not unfairly to the appellant.342 330 Meyer v. Thompson, 16 Or. 194, 18 Pac. 16. See Moorhouse v. Donaca, 14 Or. 431, 13 Pac. 112. 331 State v. Huffman, 16 Or. 15, 16 Pac. 640. As to erroneous instructions in an action by a female for her own seduction, see Breon v. Henkle, 14 Or. 494, 13 Pac. 112. 332 Idaho Mer. Co. v. Kalanquin, 8 Idaho, 101, 66 Pac. 933. 333 Gilmore v. Seattle etc. Ry. Co., 29 Wash. 150, 69 Pac. 743. 334 Haraszthy v. Shandel, 1 Colo. App. 137, 27 Pac. 876. 335 Denver etc. Transit Co. T. Dwyer, 3 Colo. App. 408, 33 Pac. 815. 336 Hannaker v. St. Paul etc. Ry. Co., 5 Dak. 1, 37 N. W. 717. 337 Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633. 338 Hart v. Fire Ins. Co., 9 Wash. 620, 38 Pac. 213, 27 L. R. A. 86. 339 Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633. 340 Moe v. Job, 1 N. Dak. 140, 45 N. W. 700. 841 In re Burrell, 77 Cal. 479, 19 Pac. 880. 342 Murray v. White, 82 Cal. 119, 23 Pac. 35. 346 § 1239. Instructions refused.-Instructions are properly refused when not warranted by the pleadings.343 It is not error to refuse instructions which are not appropriate to the issue as tendered and accepted.s 344 And a correct instruction upon a matter with respect to which the pleadings are silent, and upon which no issue is presented by them, is properly refused.345 If facts are admitted in the pleadings, the jury should be so instructed. To instruct the jury upon mere abstract questions of law, irrelevant to the case, serves only to bewilder and mislead them from the true issue to be determined." 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,348 and the court is not bound to prepare and give a proper instruction upon the same point. And a court may refuse an instruction asked, when the same has already been given in substance.350 If the court has already given the law correctly to the jury upon a given point, it is not error to refuse a second instruction upon the same point.351 Where equivalent instructions are asked and 349 343 Thompson v. Lee, 8 Cal. 276; Davis v. Shepherd, 31 Colo. 141, 72 Pac. 57. 344 De Votie v. McGerr, 15 Colo. 467, 22 Am. St. Rep. 426, 24 Pac. 923; Ringue v. Oregon Coal & Nav. Co., 44 Or. 407, 75 Pac. 703; Pacific Export Lumber Co. v. North Pacific Lumber Co., 46 Or. 194, 80 Pac. 105. 345 Marriner v. Dennison, 78 Cal. 202, 20 Pac. 386. See Johnson v. Fraser, 2 Idaho, 404, 18 Pac. 48; Johnson v. Jones, 16 Colo. 138, 26 Pac. 584. 346 Tevis v. Hicks, 41 Cal. 123. 847 Fowler v. Smith, 2 Cal. 39; Benham v. Rowe, 2 Cal. 387, 56 Am. Dec. 342; Branger v. Chevalier, 9 Cal. 353; Fairchild v. California Stage Co., 13 Cal. 599; Gray v. Sharpe, 17 Colo. App. 139, 67 Pac. 351; Young v. O'Brien, 36 Wash. 570, 79 Pac. 211. 318 Thompson v. Paige, 16 Cal. 77. 349 Ramm v. Hewitt etc. Co., 49 Wash. 263, 94 Pac. 1081. 350 People v. King, 27 Cal. 509, 87 Am. Dec. 95; Fairchild v. California Stage Co., 13 Cal. 599; Belden v. Henriques, 8 Cal. 87. 351 People v. Williams, 32 Cal. 280; 347 People v. Lee Hung (Cal.), 1 Pac. 155, 1 West Coast Rep. 45; Martin v. Hill, 3 Utah, 157, 2 Pac. 62; Territory v. Kinney, 3 N. Mex. 97, (143), 2 Pac. 357; Seattle V. Busby, 2 Wash. T. 25, 3 Pac. 180. The decisions in support of this rule are very numerous. See Hayward v. Rogers, 62 Cal. 348; Sharp v. Blankenship, 79 Cal. 411, 21 Pac. 842; Bartlett v. San Francisco, 63 Cal. 156; Johnson v. Jones, 16 Colo. 138, 26 Pac. 584; McKee v. Mining Co., 8 Colo. 392, 8 Pac. 561; Farmer v. Phelps, 18 Colo. 126, 31 Pac. 768; Anderson v. North Pacific Lumber Co., 21 Or. 281, 28 Pac. 5; Sharp v. Blankenship, 79 Cal. 411, 21 Pac. 842; Bullard v. Stone, 67 Cal. 477, 8 Pac. 17; Dufour v. Central Pacific R. R. Co., 67 Cal. 319, 7 Pac. 769; Richards v. Travelers' Ins. Co., 89 Cal. 170, 23 Am. St. Rep. 455, 26 Pac. 762; De Noon v. Morrison, 83 Cal. 163, 23 Pac. 374; Nichol v. Laumeister, 102 Cal. 658, 36 Pac. 925; Haas v. Whittier, 97 Cal. 411, 32. Pac. 449. The court is not bound to repeat itself at the request of counsel. Stevens v. Railroad Co., 100 Cal. 554, 35 Pac. 165; Gaynor 352 refused, the court should place its refusal on the ground that equivalent instructions were given. Unless this is done, the jury may be misled.3 A court may refuse to give to the jury an instruction which embraces a question which came properly before the court, and not before the jury.853 It is not error for the court to refuse to instruct a jury "that where two innocent parties must suffer, that party who had been the cause of another's loss must lose." 354 The court cannot be called upon to charge upon an assumed state of facts not proved upon the trial,3 355 but if the terms of a contract are established by evidence of both parties, its terms should be given to the jury by the court.3 The court has no right to charge the jury in regard to conclusions of facts,357 as it is the province of the jury, unaided by the court, to say whether a fact is proved or otherwise.358 It is not error for the court to refuse to instruct the jury upon a point in relation to which there is no evidence.359 Or where there is only such slight evidence as is plainly insufficient to establish it, it is proper for the court to instruct the jury to that effect, and withdraw the point from their consideration.360 Or which assumes a certain fact to exist, respecting which evidence has been introduced before the jury.36: 356 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.362 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.363 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 conclusions thereon; if it is a matter of law, he has no right to leave it to the jury.364 Instructions invading the province of the v. Clements, 16 Colo. 209, 26 Pac. 324; Cunningham v. Railway Co., 4 Utah, 206, 7 Pac. 795; Ramm v. Hewitt, 49 Wash. 263, 94 Pac. 1081. 352 People v. Hurley, 8 Cal. 390; People v. Ramirez, 13 Cal. 152. 353 Branger v. Chevalier, 9 Cal. 353. 354 Davis v. Davis, 26 Cal. 44, 85 Am. Dec. 157. 355 Crawford v. Roberts, 50 Cal. 236; Sperry v. Spaulding, 45 Cal. 544; Pratt v. Ogden, 34 N. Y. 22; Hope v. Lawrence, 50 Barb. 258. 356 Peyser v. Western Dry Goods Co., 48 Wash. 55, 92 Pac. 886. 357 Treadwell v. Wells, 4 Cal. 260. 858 People v. Dick, 32 Cal. 213; Larsen v. Oregon Ry. & Nav. Co., 19 Or. 210, 23 Pac. 974. 359 Crawford v. Roberts, 50 Cal. 236; People v. Hurley, 8 Cal. 390. 360 Selden v. Cashman, 20 Cal. 56, 81 Am. Dec. 93. 361 Preston v. Keys, 23 Cal. 193. 363 Althof v. Wolf, 2 Hilt. 344. jury are properly refused,365 and an instruction which assumes a fact in issue does so.366 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.367 A charge to the jury, telling them that in determining a particular issue material to the case the court thought they "could have no hesitation whatever," taken in connection with the rest of the charge, was an intimation that the evidence sufficiently established the fact in question, and was erroneous. 368 But where no other conclusion can be arrived at from the evidence, the error will not justify a reversal.369 Where the charge of the court, taken as a whole, fairly submitted the case to the jury, the judgment will not be disturbed because some instructions were refused which could properly have been given, or that some of those given are subject to verbal criticism.370 In New York, if a request involve several propositions, error in any justifies its refusal. The attention of the court should be drawn to each and every specific ruling.3 And the proposition submitted must be good in all its parts, or refusal will not be error.372 An instruction asked as a whole, which is erroneous in part, is properly refused, though another part of the instruction is correct.373 The same rule is laid down as to the offer of evidence.374 371 § 1240. Refusal of instructions—Continued.—It is not error to refuse instructions wholly unwarranted by the facts.375 In 365 Matteson v. Southern Pacific Co., 6 Cal. App. 318, 92 Pac. 101. 366 Stephens v. Elliott, $6 Mont. 92, 92 Pac. 45. 367 Seligman v. Kalkman, 8 Cal. 216. 388 People v. Dick, 34 Cal. 663. 369 Pico v. Stevens, 18 Cal. 377. 870 Brooks v. Crosby, 22 Cal. 43. 871 Magee v. Badger, 34 N. Y. 247, 90 Am. Dec. 691. 372 Wright v. Paige, 36 Barb. 438, 443. See Doughty v. Hope, 3 Denio, 594, 1 N. Y. 79; Zabriskie v. Smith, 13 N. Y. 332, 64 Am. Dec. 551; Cronk v. Canfield, 31 Barb. 171; Magee v. Badger, 30 Barb. 246; Griggs v. Howe, 2 Keyes, 581; Jones v. Osgood, 6 N. Y. 233. 373 Marriner v. Dennison, 78 Cal. 202, 20 Pac. 386; Williamson V. Tobey, 86 Cal. 497, 25 Pac. 65. See United States v. Musser, 4 Utah, 153, 7 Pac. 389. 374 Hosley v. Black, 28 N. Y. 438, 26 How. Pr. 97. For the practice in New York, consult, further, Taylor v. Atlantic Mutual Ins. Co., 9 Bosw. 369; Gurney v. Smithson, 7 Bosw. 396; McIntyre v. Clapp, 31 N. Y. 569; Magee v. Badger, 34 N. Y. 247, 383, 90 Am. Dec. 691; Patchin v. Peck, 38 N. Y. 39; Hoxie v. Allen, 38 N. Y. 179; Fountain v. Pettee, 38 N. Y. 184; Meyer v. Fiegel, 34 How. Pr. 434; Mallory v. Tioga R. R. Co., 5 Abb. Pr. (N. S.) 420; Bunnell v. Greathead, 49 Barb. 106. 375 Fitzgerald v. Clark, 17 Mont. 100, 52 Am. St. Rep. 665, 42 Pac. 273, 30 L. R. A. 803; Roberts v. Parrish, 17 Or. 583, 22 Pac. 136; Central |