or uncertainty, such fact should be determined by the jury.423 But a jury cannot perform the functions of appraisers.

424

If after the impaneling of a 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 another juror may be sworn, and the trial begin anew, or the jury may be discharged, and a new jury then or afterwards impaneled. 425 In all cases where the jury are discharged or prevented from giving a verdict by reason of accident or other cause, during progress of the trial, or after the cause is submitted to them, the action may be again tried immediately or at a future time, as the court may direct.426 The court may receive a verdict or discharge a jury on Sunday or a holiday, and on such day may adjudicate the fact that the jury cannot agree.427 The court must adjudicate this fact upon some kind of evidence, such as their being called into court and pronouncing their inability to agree in presence of the court and parties.428 A final adjournment of the court for the term discharges the jury.29 While the jury are absent the court may adjourn from time to time in respect to other business, but it is nevertheless open for any purpose connected with the case submitted to the jury until a verdict is rendered or the jury discharged.130 The court may direct the jury to bring in a sealed verdict. 431

§ 1247. Misconduct of jury.-If intoxicating liquor is furnished to the jury during the trial or their deliberation on the verdict, it is ground for a new trial.432 But where it clearly appears that a conversation had between a party and a juror during the progress of the trial had no reference to the trial, the court may properly refuse to discharge the jury.433

423 Rauber v. Sundback, 1 S. Dak. 268, 46 N. W. 927. See Hartvig v. Northern Pacific Lumber Co., 19 Or. 522, 25 Pac. 358.

424 Denver etc. R. R. Co. v. Costes, 1 Colo. App. 336, 28 Pac. 1129. Compare Cederberg v. Robison, 100 Cal. 93, 34 Pac. 625.

425 Cal. Code Civ. Proc., § 615.

426 Cal. Code Civ. Proc., § 616.

427 People v. Lightner, 49 Cal.

§ 1248. View of property or premises by jury.-When, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or the place in which any material fact occurred, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial.134 An irregularity of a witness accompanying the jury cannot be raised on appeal, if not raised. before verdict.435 It is a matter resting in the sound discretion of the trial court to grant or refuse a request to have the jury view the premises or property in litigation. The jury having viewed the property which is the subject of litigation, may properly take into consideration the result of their observations in connection with the evidence in deliberating upon their verdict.437

§ 1249. Withdrawal of case from jury.-Where the testimony is substantially conflicting, but the clear weight of the evidence is with either side, the court is justified in taking the decision of the case from the jury.438 A verdict or a nonsuit should be directed in any case where a verdict rendered for the opposite party would be set aside.139 As a general rule, on an application to take the case from the jury, whether by motion for a nonsuit, or by the direction of a verdict, or by demurrer to evidence, the evidence of the opposite party must be assumed to be true, and he is to be given the benefit of all legitimate inferences therefrom in his favor.* 440 Where the facts show negligence on the part of the plaintiff contributing to the accident, the case may be withdrawn from the jury.441

434 Cal. Code Civ. Proc., § 613. 435 Wood v. Moulton, 146 Cal. 317, 80 Pac. 92.

436 Saint v. Guerrerio, 17 Colo. 448, 31 Am. St. Rep. 320, 30 Pac. 335; Klepsch v. Donald, 4 Wash. 436, 31 Am. St. Rep. 939, 30 Pac. 991; Bellingham etc. R. R. Co. v. Strand, 4 Wash. 311, 30 Pac. 144. See Keller v. Bley, 15 Or. 429, 15 Pac. 705.

437 Ormund v. Granite Min. Co., 11 Mont. 303, 28 Pac. 289.

Transportation Co., 7 Wash. 491, 35
Pac. 372; Corning v. Troy etc. Nail
Factory, 44 N. Y. 577.

439 Meyer v. Lovdal, 6 Cal. App. 369, 92 Pac. 322; Watson v. Manitou & Pike's Peak Ry. Co., 41 Colo. 138, 92 Pac. 17, 17 L. R. A. (N. S.) 916.

440 Marshall v. Harney Peak etc. Mfg. Co., 1 S. Dak. 350, 47 N. W. 290; Walker v. Supple, 54 Ga. 178; Maynes v. Atwater, 88 Pa. St. 496; Myers v. Dixon, 45 How. Pr. 48.

441 Mau v. Morse, 3 Colo. App. 359, 33 Pac. 283; Brown v. Mil.

§ 1249a. Excusing juror.-The right of a party to an action to have the cause tried by an impartial jury does not give him any right to have it tried by any particular jurors, and the act of the court in excusing a juror does not give an available exception to a party objecting thereto, even if such juror is competent to act in the case.442

§ 1250. Fees of jury.—A rule of the superior court requiring a party demanding a trial by jury to deposit the jury fees with the clerk in advance of the trial is a reasonable regulation of the mode of enjoyment of the right of trial by jury, and is not a denial or impairment of the right. And such party, upon refusing to comply with the rule, waives his right to a jury.443 Under the California statute,*** trial jurors are entitled to per diem compensation only when they are in attendance upon the court, and are not entitled to any compensation during the time when they are excused by the court from attendance.445 The trial court may stay all proceedings in an action until the party in whose favor a verdict has been rendered pays the fees of the jury and the reporter.446

§ 1251. Amendment of verdict. The court may amend the verdict of a jury when it is defective in something merely formal, and which has no connection with the merits of the case, where the amendment in no respect changes the rights of the parties. The right to correct does not depend upon the judg ment, and the steps necessary for that purpose must be taken in the statutory time.448 When the verdict is announced, if it is informal or insufficient in not covering the issue submitted, it may

447

waukee R. R. Co., 22 Minn. 165; Denver etc. R. R. Co., v. Ryan, 17 Colo. 103, 28 Pac. 79.

442 Asevado v. Orr, 100 Cal. 294, 34 Pac. 777. As to practice where juror is discharged because of sickness, see People v. Brady, 72 Cal. 490, 14 Pac. 202; People v. Wong Ark, 96 Cal. 125, 30 Pac. 1115; People v. Stewart, 64 Cal. 60, 28 Pac. 112; State v. Hazledahl, 2 N. Dak. 522, 52 N. W. 315.

443 Conneau v. Geis, 73 Cal. 176, 2 Am. St. Rep. 785, 14 Pac. 580. 444 Stats. of 1871-1872, p. 188.

445 Jacobs v. Elliott, 104 Cal. 318, 37 Pac. 942.

446 Rhodes v. Spencer, 68 Cal. 199, 8 Pac. 855. See Freshour v. Hihn, 99 Cal. 443, 34 Pac. 87.

447 Perkins v. Wilson, 3 Cal. 139; Schoolfield v. Brunton, 20 Colo. 139, 36 Pac. 1103; Marine Sav. Bank v. Young, 5 Wash. 394, 31 Pac. 864; Frohner v. Rodgers, 2 Mont. 179; Osborne v. Morris, 21 Or. 367, 28 Pac. 70. See Morris v. Burke, 15 Mont. 214, 38 Pac. 1065; Truebody v. Jacobson, 2 Cal. 269.

148 People v. Hill, 16 Cal. 113.

be corrected under the advice of the court, or the jury may be again sent out.449 But where the court might have withdrawn such question from the jury, and does accept the general verdict, it is the same as if the court had refused to submit such question in the first instance.450 Error in substance cannot be corrected by motion.451 If the court, instead of having the verdict corrected by the jury, attempt to correct it by the judgment, and go beyond the verdict, it is error.452 But if the general verdict finds nominal damages, and a special finding shows certain damage with a value attached to it, the court may join the two amounts thus found into one judgment for damages.453

§ 1252. Chance verdict.-A verdict to which the assent of any of the jurors was obtained by a resort to chance will be set aside;454 such verdicts being regarded in the same light as gambling verdicts.455 When jurors agree each one to mark down the sum he thinks proper to find as damages, and then to divide the whole amount of those sums by the number of persons composing the jury, which result shall be their verdict, a verdict thus found is irregular, and will be set aside.456 But if such means be adopted without any being bound thereby, and afterwards the jury agree upon the sum thus computed, the court will not disturb the verdict.457 Such verdict is not a chance verdict within the meaning of subdivision 2 of section 657 of the California Code of Civil Procedure, 458 but the practice is vicious, and a verdict thus arrived at should be set aside, if the facts are proved by competent testimony.459 However, proof that an average was taken, that the verdict was for a sum near that

449 Cal. Code Civ. Proc., § 619; Atchison etc. Ry. Co. v. Hale, 64 Kan. 751, 68 Pac. 612. See, as to the power of correcting mere technical errors, Wells v. Cox, 1 Daly, 515.

450 Robinson v. Palatine Ins. Co., 11 N. Mex. 162, 66 Pac. 535.

451 Brush v. Kohn, 9 Bosw. 589. 452 Ross v. Austhill, 2 Cal. 183. 453 Billings v. Atchison etc. Ry. Co., 76 Kan. 325, 91 Pac. 72.

454 See Cal. Code Civ. Proc., § 657, subd. 2; Donner v. Palmer, 23 Cal.

40.

455 Wilson v. Berryman, 5 Cal. 44, 63 Am. Dec. 78.

456 Wilson v. Berryman, 5 Cal. 45, 63 Am. Dec. 78.

457 Id.; Pence v. California Min. Co., 27 Utah, 378, 75 Pac. 934; Bell v. Butler, 34 Wash. 131, 75 Pac. 130.

458 Code Civ. Proc., § 657; Boyce v. California Stage Co., 25 Cal. 460.

459 Turner V. Tuolumne County Water Co., 25 Cal. 397. Upon subject of chance verdict, see Dixon v. Pluns, 98 Cal. 384, 35 Am. St. Rep. 180, 33 Pac. 268, 20 L. R. A. 698; Goodman v. Cody, 1 Wash. T. 329, 34 Am. Rep. 808; Gordon v. Trevarthen, 13 Mont. 387, 40 Am. St. Rep. 452, 34 Pac. 185; Pawnee etc. Imp. Co. v. Adams, 1 Colo. App. 250, 28 Pac. 662.

average, and it not appearing that they had agreed to accept the average as a verdict, is not sufficient to set it aside as a quotient verdict.460

461

§ 1253. Character and form of verdict.-When the party does not rely in his pleadings upon an estoppel, but himself opens the truth or falsehood of the facts which he claims that the other party is estopped to aver or deny, and makes the truth of these facts the very issue which the jury are called upon to try, the jury are bound to find according to the real truth of the facts proved before them. The terms and expressions in the pleading will not necessarily give character to or determine the effect. or meaning of the verdict.462 A recovery, if had, must be grounded upon the facts which are averred in the complaint, and not upon those which are denied.483 The verdict must be confined to the matters put in issue by the pleadings.464 A verdict need not be entitled at all.465 Where a case is tried by the court without a jury, the findings of the court upon the facts shall be deemed a verdict.466 The verdict of a jury in a chancery case is only advisory to the chancellor or this court,107 and may be disregarded.468

§ 1254. Claim and delivery, form of verdict in actions for.In actions for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant by his answer claims a return thereof, the jury, if their verdict be in favor of the plaintiff, or if, being in favor of the defendant, they also find that he is entitled to a return thereof, shall find the value of the property; and may at the same time assess the damages, if any are claimed in the complaint or answer, which

460 Stanley v. Stanley, 32 Wash. 489, 73 Pac. 596.

461 Anthony v. Brayton, 7 R. I. 52. See Cal. Code Civ. Proc., §§ 1908, 1962.

462 McLaughlin v. Kelly, 22 Cal.

212.

463 Gregory v. Haworth, 25 Cal. 653.

464 Benedict v. Bray, 2 Cal. 251, 56 Am. Dec. 332; Truebody v. Jacobson, 2 Cal. 285; Marquard v. Wheeler, 52 Cal. 445.

465 McGarrity v. Byington, 12 Cal.

429.

466 Kyle v. Rippy, 19 Or. 186, 25 Pac. 141.

467 Still v. Saunders, 8 Cal. 281; James v. Superior Court, 78 Cal. 107, 20 Pac. 241; Kellogg v. Kellogg, 21 Colo. 181, 40 Pac. 358; Clavey v. Lord, 87 Cal. 413, 25 Pac. 493; McDonald v. Thompson, 16 Colo. 13, 26 Pac. 146.

468 Goode v. Smith, 13 Cal. 84; Wingate v. Ferris, 50 Cal. 105; Johnson v. Powers, 65 Cal. 179, 3 Pac. 625; Sweetser v. Dobbins, 65 Cal. 529, 4 Pac. 540.