4. CHARGES GIVEN BY THE COURT-REVIEW OF.-If the defendant desires to have the charges given by the court, of its own motion, reviewed by the appellate court, he must except thereto at the time such charges are given, and incorporate the.. same in a bill of exceptions, certified to by the judge. People v. Biles. Idaho, 829. 5. INSTRUCTIONS WHEN NOT REVIEWED-RecorD MUST CONTAIN TESTIMONY.—Alleged error in giving or refusing instructions will not be reviewed on appeal, where the record does not contain the testimony given at the trial, so that the court can determine the applicability of the instructions. Gelberson v. Miller M. & S. Co. Utah, 503.

6. INSTRUCTIONS-REFUSAL TO GIVE WHEN NOT GROUND FOR REVERSAL.-The refusal of the court to give an instruction requested will not warrant a reversal, in the absence of the evidence and the instructions given. People v. Bourke. Cal., 586. 7. THE SAME ORAL INSTRUCTIONS IN CRIMINAL CASE-EFFECT OF.-Oral instructions in a criminal case will not warrant a reversal, unless it affirmatively appears that such instructions were not taken down by the phonographic reporter, as required by section 1,093 of the penal code. In the absence of evidence to the contrary, the presumption is that the instructions were so taken down. Id.

8. INSTRUCTIONS MUST BE SUPPORTED BY EVIDENCE.—An instruction to the jury should be refused if it be based upon a state of facts not supported by the evidence. Crabtree v. Segrist. N. M., 840.

9. INSTRUCTIONS MUST BE Considered as A WHOLE.-When the instructions as a whole fairly present the case to the jury, immaterial discrepancies therein will not warrant a reversal. Id.

10. INSTRUCTIONS MUST BE CONSIDERED AS ENTIRETY-ERROR IN PART OF INSTRUCTION.— An instruction must be considered together as an entirety, and when so considered, if it states a correct principle of law, and it is evident that the jury could not have been misled, the judgment will not be reversed for error in part of the instructions. State v. Lindsey. Nev., 467.

11. INSTRUCTIONS-IMMATERIAL ERRORS-REVERSAL.-Where the charge, as a whole, fairly presents the law bearing on the evidence, before the jury, the judgment will not be reversed because portions of the charge may be open to criticism. People v. Prather. Cal., 753.

12. INSTRUCTIONS-IMMATERIAL ERRORS NOT GROUND FOR REVERSAL.

Incidental errors in instructions when they plainly appear, will not be cause for refusal, provided the charge as a whole fairly submits the law and the facts to the jury. Pink erton v. Ledoux. N. M., 566.

13. INSTRUCTIONS, WHEN SUFFICIENT MUST BE Considered as WHOLE.—Instructions must be considered as a whole; and if, when so considered, they cover the entire case, and no more, and make a harmonious whole, not inapplicable or inconsistent with each other, they are sufficient. Kennon v. Gilmer. Mont., 601.

14. INSTRUCTIONS-ERROR IN PARTICULAR INSTRUCTION.—An objection to a particular instruction will not warrant a reversal, if the instructions, as a whole, contain a correct statement of the law. People v. Tomlinson. Cal., 212.

15. INSTRUCTIONS CONFLICT OF EVIDENCE.--Where the witness for the respective parties contradict each other in every material particular, it is not error to instruct the jury to find for the party whose witnesses they believe spoke the truth. Kent v. Favor. N. M., 254.

16. INSTRUCTIONS PRESUMED TO HAVE BEEN GIVEN IN WRITING.-Instructions to the jury will be presumed to have been given in writing when there is nothing to the contrary in the evidence. Id.

17, REFUSAL TO GIVE AN INSTRUCTION ASKED FOR, IF THE SAME IS TOO FAVORABLE, is not error. People v. Beam. Cal., 287.

18. AN INSTRUCTION, ALTHOUGH ERRONEOUS IF MORE FAVORABLE to the defeated party than was justifiable, is not ground for reversal. Pinkerton v. Ledoux. N. M., 566.

19. AN ERRONEOUS INSTRUCTION, IF FAVORABLE TO THE defendant, cannot be com plained of by him. People v. Callaghan. Utah, 742.

20. VERDICT-WHEN NOT DISTURBED FOR ERRORS IN INSTRUCTIONS.-When a verdict accords with the merits of the case, as disclosed by the record, errors in the in

structions will not warrant a reversal, unless specially excepted to. A general ex-
ception to the charge, as a whole, is not sufficient. Probst v. Trustees of Presbyte-
Church. N. M., 442.

21. REFUSAL TO GIVE INSTRUCTIONS WHICH HAVE ALREADY BEEN GIVEN in substance is
not error. Id.

22. REFUSAL TO GIVE INSTRUCTIONS WHICH HAVE ALREADY BEEN GIVEN in substance is
not error. People v. Gray. Cal., 69.

23. AN INSTRUCTION PARTLY CORRECT AND PARTLY INCORRECT is properly refused.
McGinnis v. Egbert. Col., 3.5.

See CRIMINAL LAW AND PRACTICE, 1; EJECTMENT, 3; JUDGMENT, 13; MURDER AND
MANSLAUGHTER, 4, 6-8, 17.

INSURANCE.

1. FIRE INSURANCE-INTEREST OF INSURED-INCORRECT STATEMENT OF IN POLICY
-ESTOPPEL.-An insurance was effected by the plaintiffs on a stock of goods, the
property of a corporation in which they were stockholders, and which goods they
were holding as security for advances; their application described the property as
their own; the policy referred to the application, and made it a part thereof, and
all statements therein warranties, and provided that if the assured were not the
sole, absolute and and unconditional owner of the property insured, and such in-
terest were not truly stated in the policy, then, and in every such case, the policy
should be void. Held, that the policy was void, and that the insurers were not es-
topped to deny its invalidity, because they did not assert the same immediately
after the fire, when the discovered the true nature of the plaintiff's interest. Mc-
Cormick et al. v. Springfield Fire and Marine Insurance Company. Cal., 229.

2. MARINE INSURANCE-DEVIATION IN VOYAGE-DISCHARGE OF INSURER.-A marine
policy of insurance implies a warrant that the vessel shall not deviate from the
voyage declared in the policy. Any voluntary deviation is a change of the risk,
and forms a departure from the contract, the legal effect of which is to discharge
the insurers from liability for any loss happening to the thing insured subsequent to
the unauthorized deviation. Schroder et al. v. Schweitzer Lloyd. Cal., 161.
3. THE SAME-TRANSHIPMENT OF CARGO-SUBSEQUENT Loss-BILL OF LADING.-The
defendant insured certain wheat on the steamer Colorado, for a voyage from San
Francisco, by way of the port of Yokohama, to the port of Hongkong, and thence
by the usual "connections" to Batavia; it was the usual practice for the company's
steamer to carry its cargo to Hongkong without transhipment at Yokohama, or
connecting for that purpose, with any other vessel, at the last named port; such
usage was well known to the defendant when it issued the policy. Held, that a
transhipment of the property insured at Yokohama was a deviation from the policy
and released the insurer from liability thereunder for a loss subsequently incurred.
This result follows, although the bill of lading, the form of which was well known
to underwriters in San Francisco, provided that the carrier might tranship at Yoko-
hama, in the absence of proof that it had ever before made such transhipment. Id.
See ARBITRATION AND AWARD, 2.

INTENT.

See FORGERY, 1.

INTEREST.

See NEGLIGENCE, 8.
JUDGE.

1. JUDGE WHEN NOT DISQUALIFIED BECAUSE ONCE ATTORNEY FOR PARTY.—A judge is
not disqualified from trying a cause because he had formerly been an attorney for
one of the parties in another action involving some of the same issues Cleghorn v.
Cleghorn. Cal., 216.

2. SUPERIOR JUDGE MAY HOLD COURT IN ANOTHER COUNTY.-The judge of the superior
court of one county may hold court for the judge of another county, at the latter's
request. Eureka Lake etc. Co. v. Superior Court. Cal., 179, 181.

JUDGMENT.

1. ACTION ON JOINT LIABILITY-SEVERAL JUDGMENT CANNOT BE ENTERED.-In an
action at law on a joint liability, judgment cannot be entered separately against one
of the defendants. Rupe et al. v. New Mexico Lumber Association. N. M., 479.

2. JUDGMENT ON PLEADINGS-REVIEW OF.-The supreme court will not reverse or
modify a judgment given upon a motion upon the pleadings, if it appears from the
pleadings that the party was clearly entitled to the judgment. Bowles v. Doble.
Or., 671.

3. PLAINTIFF NOT ENTITLED TO JUDGMENT WHEN COMPLAINT FAILS TO STATE CAUSE
OF ACTION-APPEAL. The plaintiff in an action of forcible entry and detainer in
the justice's court is not entitled to a judgment, if the complaint fails to state a
cause of action; if the defendant appeals from such judgment, and at the next term
of the district court fails to prosecute his appeal, the court has no authority to dis-
miss the appeal and at the same time affirm the judgment of the justice. Gonzales
et al. v. Boren. N. M., 239.

4. PERSONAL JUDGMENT AGAINST PARTNER NOT VOID.-A personal judgment against
one of several partners, in an action on a partnership liability, is not void, and con-
sequently cannot be collatterally attacked, if the court had jurisdiction of the
parties and of the subject matter of the action. Wells, Fargo & Co. v. Clarkson.
Mont., 642.

5. JUDGMENTS WHEN CAN BE SET OFF AFTER ASSIGNMENT.-A judgment debtor is en-
titled to set off a judgment in his favor, against a judgment in favor of his judgment
creditor, although such creditor has assigned his judgment, and the assignee, at the
time of the assignment, had no notice of the subsisting equity of the judgment
debtor. Id.

6. JUDGMENT IN LEGAL ACTION WHEN A BAR TO SUIT IN EQUITY.-A judgment for the
defendant in an action at law brought to recover a balance alleged to have been
found due the plaintiff upon the settlement of a partnership, is a bar to a subse-
quent suit in equity brought by the plaintiff to set aside the same alleged settle-
ment and for an accounting of the partnership affairs. Robbins v. Collier. N.
M., 439.

7. PRIOR JUDGMENT WHEN A BAR TO SUBSEQUENT ACTION.-In an action by the city
and county of San Francisco, to obtain possession of certain land, the title to which
is claimed under an alleged dedication, a judgment in a former action between the
same parties in favor of the defendant, and a finding that no such dedication was
made, is a bar. People v. Holladay et al. Cal., 359.

8. JUDGMENT WILL NOT BE SET ASIDE ON MOTION AFTER EXECUTION SALE. —A judg
ment which appears valid by the record, will not be set aside on motion of the judg
ment debtor, after an execution sale under such judgment. If such judgment be
irregular, the debtor must resort to equity to have the same set aside. Foster et al.
v. Hauswirth. Mont., 704.

9. JUSTICE'S JUDGMENT-APPEAL-Costs.—A judgment of a justice of the peace, ren-
dered upon a conviction for an assault and battery, is sufficient, if in conformity
with the statute. Such judgment may include the costs in the imprisonment. In
an affirmance of such judgment on appeal, the circuit court should not include
therein the costs of the trial in the lower court. Crowley et al. v. State. Or., 740.
10. JUDGMENT MAY BE ENTERED IN VACATION.-Under section 29 of the civil practice
act, a judgment or order of the district court may be entered in vacation. Schenck
et al. v. Birdseye et al. Idaho, 835.

11. FOREIGN JUDGMENT.-The complaint 'considered and held sufficient to support the
judgment. Id.

12. WHEN THERE IS A CONFLICT OF EVIDENCE on the material issues the judgment will
not be disturbed. Cummings v. Marsh. Cal., 526.

13. CONFLICTING INSTRUCTIONS-REVERSAL OF JUDGMENT.-Where the instructions are
in direct conflict upon a material issue in the case, the judgment will be reversed.
Monroe v. Cooper. Cal., 885.

14. FOR ERRORS WITHOUT INJURY A JUDGMENT WILL NOT BE REVERSED. Quimby v.
Butler et al. Cal., 236.

15. RECORD HELD TO PRESENT NO ERROR and judgment and order affirmed. Olney v. Weske. Cal., 227.

16. JUDGMENT AND ORDER AFFIRMED. Kirby et al. v. London and San Francisco Bank, Limited. Cal., 27.

See ABATEMENT, 1; APPEAL, 11, 13, 26; ASSIGNMENT, 2; CLAIM AND DElivery, 1; CONTEMPT, 3; DEMURRER, 5; MORTGAGE, 7; PARTNERSHIP, 3; SURETIES, 4.

JUDGMENT ROLL.

See APPEAL, 12, 16.

JURISDICTION.

1. SPECIAL PROCEEDING-JURISDICTION-MAJORITY OF SHAREHOLDERS.-Where an act of the legislature providing for a special proceeding on behalf of a corporation, requires that the petition therefor must be signed by a majority of the shareholders, before the court acquires jurisdiction, a petition signed by the holder of a majority of the stock is not sufficient. Chollar Mining Companyv. Wilson, Judge, etc. Cal., 276. See APPEAL, 2, 19; ATTORNEYS, 1, 2; CITIZENSHIP, 1; CONSULS, 1; EQUITY, 3, 4; LIENS, 3; TRESPASS, 3, 4.

JURY AND JURORS.

.

1. PERSONS COMPETENT AS GRAND JURORS-CONSTRUCTION OF STATUTE.-The provision of the code of 1881, making all electors and householders competent as grand jurors, is not limited in its application to such persons as were thus qualified at the time such provision was enacted, but extends to all those who should thereafter become endowed with such requisite qualifications. Rosencrantz v. Territory. Wash., 262.

2. THE SAME MARRIED WOMAN COMPETENT AS GRAND JUROR. A married woman living with her husband, under chapter 183 of the code of 1881, is a householder, and being an elector, is competent to act as a grand juror. Id.

3. CONSTITUTIONAL LAW-GRANd Juror-PreSENTMENT BY.—The legislature may provide for the trial of a crime, not infamous, without presentment by a grand jury, and, a fortiori, upon a presentment by other than a common law grand jury. Id. 4. MARRIED WOMAN MAY ACT AS GRAND JUROR.-A married woman, living with her husband, is competent to act as a grand juror. Schilling v. Territory. Wash., 684. 5. MARRIED WOMEN MAY ACT AS JURORS.-The legislature had power to make married women eligible to sit and serve on grand and petit juries in all cases. Hays v. Territory. Wash., 685.

6. JURY TRIAL IN CRIMINAL CASE-IMPANELING JURY-CHALLENGING.-Under our civil practice act the method of impaneling a trial jury in a criminal action is different from that of impaneling a trial jury in a civil case under our code of civil procedure. In impaueling a jury in a criminal action, the court may require the parties to exercise all their challenges, peremptory or for cause, and the juror, if accepted, be sworn to try the cause as each juror appears, and before another is called; or may in its discretion allow the clerk to draw from the box twelve names before any challenges are interposed, and after these are examined for cause and passed upon, draw others to take the place of those excused, and allow the parties to examine and pass upon all thus called, before exercising their peremptory challenges; provided, that in case of recess or adjournment, the peremptory challenges be exercised as to those passed and accepted for cause at the time of taking recess or adjournment, and those not excused be sworn to try the cause, and thus placed under the control of the court. The court may, for good cause shown, permit a challenge, either peremptory or for cause, to be taken after a juror is sworn, and before the jury is completed. United States v. Kuok Wah Chio. Idaho, 820.

7. DISQUALIFICATION OF JUROR-PREVIOUS OPINION, WHEN NOT.-A juror is not disqualified from serving as such because he had formed and expressed an opinion upon the merits of the case, if he testifies upon his voire dire examination that his former opinion would not control him in any way in making up his verdict, and that he would be governed by the evidence to be introduced at the trial. Denver, South Park and Pacific Railroad Co. v. Moynahan. Col., 533.

8. ARGUMENT TO JURY-COMMENTS UPON FACTS NOT IN EVIDENCE.-An attempt by counsel in his argument to the jury to comment upon matters not in evidence, will not warrant a reversal, if he was not permitted to state what such matters were. Id.

9. THE SAME-ACTION AGAINST CORPORATION.-A verdict against a railroad company will not be disturbed because the opposing counsel in addressing the jury commented upon certain facts not in evidence, tending to show the grasping nature of the company, if the court charged the jury that their verdict must be determined from the facts in evidence, precisely as if the controversy were between two individuals. Id. 10. ARGUMENT OF COUNSEL-READING TEXT BOOK TO JURY NOT ERROR.-It is not error for counsel to read to the jury an extract from a legal text book, in illustration of his argument, if the jury at the time are admonished by the court not to receive the same as law. Such practice, however, is objectionable. Gelberson v. Miller M. & S. Co. Utah, 503.

11. WAIVER OF JURY.-Where a case has been set by consent for trial before the court, and afterwards came on regularly for trial before the court, without a jury, and the trial actually began, a jury is waived, and cannot subsequently be demanded as of right. Polack v. Gurnee. Cal., 46.

12. SUMMONING JURY AFTER JURY LIST IS EXHAUSTED.-When the district court is unable to obtain a trial jury according to the act of congress of June 23, 1874, by reason of the exhaustion of the jury list, it has implied power to issue a venire, to obtain the requisite number to complete the jury. Such power is incident to the authority to hold the court and to try jury cases. United States v. Clawson. Utah, 335.

See CONSTITUTIONAL LAW, 14; CONTEMPT, 1-3; CRIMINAL LAW AND PRACTICE, 8, 9;
DIVORCE, 6; NEW TRIAL, 14; STATUTE OF LIMITATIONS, 2.
JUSTICE'S COURT.

1. JUSTICE'S COURT-PLACE OF TRIAL-SERVICE OF SUMMONS.-An action in the justice's court to recover for breach of a contract may be brought in the township or city in which the obligation was to be performed, under section 832 of the code of civil procedure. In such case the summons may be served on the defendant in the county in which he resides, under section 848 of the same code. Cole et al. v Fisher. Cal., 527.

See APPEAL, 19, 20; JUDGMENT, 9; TRESPASs, 3, 4.

LANDLORD AND TENANT.

1. LANDLORD AND TENANT-SUB-TENANT-ESTOPPEL.-The plaintiff executed to the defendant G. a written lease of a certain lot of land, and under it the lessee entered into possession. Subsequently G. put the defendant C. in possession of a part of the lot by moving a house that C. refused to leave on to the same. Held, that by remaining in the house so moved the defendant C. became the sub-tenant of the plaintiff, and was estopped to deny such relation; and was liable to be removed, under the unlawful detainer act, on default of the lessee in paying rent. Pardee v. Gray et al. Cal., 884.

See COVENANTS, 1-3; EXECUTORS AND ADMINISTRATORS, 1, 2; GROWING CROPS, 1; UN-
LAWFUL DETAINER, 1, 2.
LARCENY.

1. LARCENY AND OBTAINING MONEY BY FALSE PRETENSES DISTINGUISHED.—Where by means of fraud, conspiracy or artifice, possession of property is obtained with felonious intent, and the title still remains in the owner, larceny is established, while the crime is false pretenses if the title as well as the possession is absolutely parted with. People v. Rae. Cal., 512.

2. POSSESSION OF PROPERTY RECENTLY STOLEN.-The possession by the defendant of any part of property recently stolen, unless satisfactorily explained, is not of itself sufficient to justify a conviction of larceny, but is a circumstance to be considered, in connection with other suspicious facts, in determining the defendant's guilt or innocence. Peope v. Fagin. Cal., 894.