formal, it is the duty of the court to explain to them its defects, and direct them to put it in proper form.513 The only object of a verdict is to express in intelligible language the result at which a jury have arrived, and a verdict that the plaintiffs are "entitled to the sum of two thousand five hundred dollars," is equivalent to finding the issues in favor of the plaintiffs and assessing their damages at that sum.514 A verdict for the recovery of money must be certain as to the amount.5 515

§ 1262. Joint verdict.-A joint verdict against answering and defaulting defendants is conclusive against all when a separate verdict has not been demanded.518 And if no objection or exception is taken to the verdict on that ground in time to afford an opportunity to correct it, the defendants cannot afterwards object to the joint verdict and judgment.517

§ 1263. Mining claims, verdict in actions for. In an action to recover a quartz-ledge when defendants deny plaintiffs' title and ouster, and set up title in themselves to a part only in the ledge, a special verdict awarding defendants that portion of the ledge they claim, without a general verdict, if accepted by plaintiffs, is a finding in favor of defendants, and entitles them to costs.518 The words "more or less," contained in a verdict, give all between the notices.519

1264. Setting aside verdict.-A court may, of its own motion, set aside the verdict of a jury, when clearly and palpably against the evidence.520 A general objection to the form of a verdict, without any specification of particular defects, will not be considered. A verdict obtained upon incompetent evidence may be set aside, but not if the evidence were admitted without objection. In such case, that which vitiates the verdict is the error of the court in admitting the evidence.522

521

513 People v. Dick, 34 Cal. 663. 514 Mendelsohn v. Anaheim L. Co., 40 Cal. 660.

515 Watson v. Damon, 54 Cal. 278. See Estate of Cahill, 74 Cal. 52, 15 Pac. 364.

516 Anderson v. Parker, 6 Cal. 197; Ellis v. Jeans, 7 Cal. 409.

517 Hicks v. Coleman, 25 Cal. 122,

85 Am. Dec. 103. See State V. Weeks, 23 Or. 3, 34 Pac. 1095.

518 Gonzales v. Leon, 31 Cal. 98. 519 Id.

520 Duff v. Fisher, 15 Cal. 375. 521 Mahoney v. Van Winkle, 21 Cal. 552.

522 McCloud v. O'Neall, 16 Cal.

392.

§ 1265. Verdict in particular actions. In an action of ejectment, a general verdict is sufficient, and will not be disturbed on the ground of the insufficiency of the evidence, if the evidence. is substantially conflicting.523 If in such action the plaintiff fail to establish his right of possession, a general verdict for the defendant is sufficient in form.524 In an action for use and occupation, a verdict assessing "damages at three thousand and fifty dollars, and legal interest" is bad for uncertainty, and will not sustain a judgment unless the words "and legal interest" be treated as surplusage.525 On the trial of an information in the nature of a quo warranto, the respondent is entitled to a trial by jury and to a unanimous verdict.528 But the admission of improper evidence is no ground for setting aside the verdict where no injury was done thereby to the party objecting. Where the law declares certain facts conclusive evidence of fraud, a verdict against such conclusion will be set aside; but where the facts are declared merely presumptive, it is otherwise. 527 The amendment of 1862 to section 193 of the California Practice Act, allowing the affidavits of jurors to be received to impeach their own verdict, relates merely to the remedy, and governs in all applications for new trial made after its passage.528 Such affidavits are not allowed unless it be a chance verdict which is impeached.529 A verdict was set aside on the ground of misconduct on the part of the officer in charge.530 The affidavits of the jurymen who rendered a verdict, that they misunderstood its effect, cannot be received to impeach or defeat it.531

1266. The same-Continued.-A verdict so clearly against an overwhelming weight of testimony that, if not willfully wrong, it could have resulted only from misapprehension or mistake of law, should be set aside.532 A verdict unsupported by evidence

523 Joy v. McKay, 70 Cal. 445, 11 Pac. 763.

524 Pike v. Sutton, 21 Colo. 84, 39 Pac. 1084. As to informal but sufficient verdict in ejectment, see Johnson v. Visher, 96 Cal. 310, 31 Pac. 106. Verdict in assumpsit, agreement as to issues, see Redmond v. Weismann, 77 Cal. 423, 20 Pac. 544.

525 Meeker v. Gardella, 1 Wash. 139, 23 Pac. 837.

526 Bradford v. Territory, 1 Okla. 366, 34 Pac. 66.

527 Priest v. Union Canal Co., 6 Cal. 170.

528 Donner v. Palmer, 23 Cal. 40.

529 Turner V. Tuolumne County Water Co., 25 Cal. 397; Boyce v. California Stage Co., 25 Cal. 460.

530 Thomas v. Chapman, 45 Barb. 98. See "New Trial."

531 Polhemus v. Heiman, 50 Cal. 438.

582 Lawrence v. Weir, 3 Colo. App. 401, 33 Pac. 646.

535

533

must be set aside." So of a verdict that must have been the result of prejudice, mistake, or bias.534 But a verdict will not be set aside if the evidence substantially supports it. The verdict must be plainly wrong and manifestly against the weight of the evidence. If there is a substantial conflict in the evidence, a verdict will not be disturbed.536 And the refusal of a trial court to set aside the verdict of a jury and grant a new trial is an exercise of discretion, not to be reviewed by an appellate court, unless it can be shown there has been an abuse of discretion, or unless there be a great preponderance of evidence against the verdict.537

§ 1267. Impeachment of verdict by oaths of jurors.-Affidavits of jurors will not be received to impeach their verdict, unless authorized by statute, and only then upon the grounds, and in the manner, permitted by the statute.538 Under section 657 of the California Code of Civil Procedure such affidavits can only be resorted to for the purpose of impeaching the verdict, when the verdict has been determined by a resort to chance.539 And

533 Cronk v. Chicago etc. R. R. Co., 3 S. Dak. 93, 52 N. W. 420.

534 Denver etc. R. R. Co. v. De Graff, 2 Colo. App. 43, 29 Pac. 664; Caldwell v. Willey, 16 Colo. 169, 26 Pac. 161; Hockaday v. Goodwin, 1 Colo. App. 90, 27 Pac. 875.

535 People v. Swasey, 6 Utah, 93, 21 Pac. 400; Hopkins v. Ogden City, 5 Utah, 390, 16 Pac. 596; Burden v. Cropp, 7 Wash. 198, 34 Pac. 834.

536 Clanton v. Coward, 67 Cal. 373, 7 Pac. 787; Declez v. Save, 71 Cal. 552, 12 Pac. 722; Frank v. Murray, 7 Mont. 4, 14 Pac. 654; Montana Ry. Co. v. Warren, 6 Mont. 275, 12 Pac. 641; Beck v. Beck, 6 Mont. 285, 12 Pac. 646; Pielke v. Chicago etc. R. R. Co., 6 Dak. 444, 43 N. W. 813; Halley v. Folsom, 1 N. Dak. 325, 48 N. W. 219; National Refining Co. v. Miller, 1 S. Dak. 548, 47 N. W. 962; Jeansch v. Lewis, 1 S. Dak. 609, 48 N. W. 128; Smith v. Rio Grande etc. R. R. Co., 9 Utah, 141, 33 Pac. 626; Puget Sound etc. R. R. Co. v. Ingersoll, 4 Wash. 675, 30 Pac. 1097; Williams v. Wishard, 1 Colo. App. 212, 28 Pac. 20; Denver etc.

R. R. Co. v. Richards, 2 Colo. App. 87, 29 Pac. 1010; Kinney v. Wood, 10 Colo. 270, 15 Pac. 402; Coon v. Duckett, 13 Colo. 14, 21 Pac. 905; Hurd v. Union Pacific Ry. Co., 8 Utah, 241, 30 Pac. 982; Aultman v. Miller etc. Mills, 9 Wash. 68, 36 Pac. 1046; Holman v. Boston Land etc. Co., 20 Colo. 7, 36 Pac. 797; Layton v. Kirkendall, 20 Colo. 236, 38 Pac. 55.

537 Page v. Rodney, 2 Wash. T. 461, 7 Pac. 895. See Beekman v. Hamlin, 23 Or. 313, 31 Pac. 707; State v. Foot You, 24 Or. 61, 32 Pac. 1031, 33 Pac. 537. Overruling on this point, State v. Olds, 19 Or. 397, 24 Pac. 394; Rhone v. Powell, 20 Colo. 41, 36 Pac. 899.

538 Murphy v. Murphy, 1 S. Dak 316, 47 N. W. 142, 9 L. R. A. 820; Gaines v. White, 1 S. Dak. 434, 47 N. W. 524; Cline v. Broy, 1 Or. 89; Knight v. Fisher, 15 Colo. 176, 25 Pac. 78; Homer v. Inter-Mountain Abstract Co., 9 Utah, 193, 33 Pac. 700.

539 Fredericks v. Judah, 73 Cal. 604, 15 Pac. 305. See, also, Pawnee etc. Imp. Co. v. Adams, 1 Colo. App.

T

an affidavit by a juryman that the verdict was arrived at by resorting to the determination of chance, and that he was induced to assent thereto in that manner, is not conclusive upon the trial court, and where the court finds upon conflicting evidence, both oral and by affidavit, that the verdict was not a chance verdict its action will not be interfered with upon appeal.540 Affidavits of jurors are not admissible to impeach their verdict on the ground that it is what is known as a "quotient verdict," 541 or that, in their opinion, the conclusion of the majority was reached by giving a wrong construction or too much weight to a part of the evidence. 542

§ 1268. Special verdict.-A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It shall present the conclusions of fact as established by the evidence, and not the evidence to prove them, and those conclusions of fact shall be so presented that nothing shall remain to the court but to draw the conclusions of law. 543 Special issues in form of questions, submitted by stipulation, and answered by the jury and signed by the foreman, constitute a special verdict.544 Special verdicts and special findings are identical, and a request for special findings authorized by statute is mandatory, and cannot be refused on the grounds that the request does not include certain words in the code.545 In an action for the recovery of money only it is optional with the court to submit particular questions of fact to the jury.54 In all cases other

250, 28 Pac. 662; Richards v. Richards, 20 Colo. 303, 38 Pac. 323; Wray v. Carpentier, 16 Colo. 271, 25 Am. St. Rep. 265, 27 Pac. 248; Bernier v. Anderson, 8 Idaho, 675, 70 Pac. 1027.

540 Dixon v. Pluns, 101 Cal. 511, 35 Pac. 1030.

541 Ulrick v. Dakota Trust Co., 2 S. Dak. 285, 49 N. W. 1054. See Hunt v. Elliott, 77 Cal. 588, 20 Pac. 132. Compare Dixon v. Pluns, 98 Cal. 384, 35 Am. St. Rep. 180, 33 Pac. 268, 20 L. R. A. 698; Village of Ponca v. Crawford, 23 Neb. 662, 8 Am. St. Rep. 144, 37 Pac. 609; Southern Nev. etc. Co. v. Holmes Min. Co., 27 Nev. 107, 103 Am. St. Rep. 759, 73 Pac. 759.

542 Spencer v. Spencer, 31 Mont. 631, 79 Pac. 320.

543 Cal. Code Civ. Proc., § 624. As to submission of special issues to jury, see Smith v. Occidental S. S. Co., 99 Cal. 462, 34 Pac. 84; Eisenhart v. Ordean, 3 Colo. App. 162, 32 Pac. 495; Lufkins v. Collins, 2 Idaho, 256, 10 Pac. 300; Wild v. Oregon etc. R. R. Co., 21 Or. 159, 27 Pac. 954; Rohr v. Isaacs, 8 Or. 451; Redford v. Spokane Street R. R. Co., 9 Wash. 55, 36 Pac. 1085.

544 In re Keithley's Estate, 134 Cal. 9, 66 Pac. 5; Cal. Code Civ. Proc., § 624.

545 Plyer v. Pacific Portland Cement Co., 152 Cal. 125, 92 Pac. 56; Cal. Code Civ. Proc., § 625.

546 Olmstead v. Dauphiny, 104 Cal.

than for the recovery of money only, or specific real property, 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 return a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.547 Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.548

When the jury are directed by the court to find a general verdict, and also to make a special finding of facts, and a general verdict is returned in favor of one party, and the findings on the special issues are in favor of the other party, the court should render judgment in accordance with the special findings, if they embrace all the issues raised in the pleadings; if not, then judgment should be rendered on the general verdict.549 A general verdict implies a finding for the prevailing party of every fact essential to support a verdict, while a special verdict is to test the validity of the general verdict.550 The special findings of a jury are inconsistent with their general verdict when the former, as a matter of law, will authorize a different judgment than that which the latter will.551 The findings of the jury on special issues submitted to them are ineffective for any purpose, and cannot control the general verdict, unless they are signed either by the jury or by their foreman.552 A special verdict must find the facts expressly and specially, and not generally or impliedly.553 And the findings must be distinct,554 and not equivocal. Such verdict settles the facts, and the court by its judgment pronounces the conclusions of law upon the facts so found.555 A special verdict

635. Compare Webb v. Denver etc. R. R. Co., 7 Utah, 17, 24 Pac. 616; Burke v. McDonald, 2 Idaho, 679, 33 Pac. 49. As to discretion of the court in requiring a special verdict from the jury, see Columbia etc. R. R. Co. v. Hawthorne, 3 Wash. T. 353, 19 Pac. 25; Knahtla v. Oregon etc. Ry. Co., 21 Or. 136, 27 Pac. 91.

547 Cal. Code Civ. Proc., § 625. 548 ld.; Rolfes v. Russel, 5 Or. 400; Willey v. Morrow, 1 Wash. T. 474; Loewenberg v. Rosenthal, 18 Or. 178, 22 Pac. 601; Rio Grande etc. R. R. Co. v. Deasey, 3 Colo. App. 196, 32 Pac. 725; Cox v. Delmas, 99 Cal.

104, 124, 33 Pac. 836; Stewart v. Walla Walla Pub. Co., 1 Wash. 521, 20 Pac. 605; Bradbury v. Idaho etc. Imp. Co., 2 Idaho, 239, 10 Pac. 620. 549 McDermott v. Higby, 23 Cal.

489.

550 Plyer v. Pacific Portland Cement Co., 152 Cal. 125, 92 Pac. 56. 551 Loewenberg v. Rosenthal, 18 Or. 178, 22 Pac. 601.

552 Greenberg v. Hoff, 80 Cal. 81, 22 Pac. 69.

553 Cal. Code Civ. Proc., § 624; Breeze v. Doyle, 19 Cal. 102. 554 Woodson v. McCune, 17 Cal. 298. 555 People v. Hill, 16 Cal. 113.