appointed by the court, not less than twenty-four hours after the completion of such list, the parties shall be required, in open court, to strike from such list one name alternately, the plaintiff striking first, till there shall be but fifty names remaining. Such fifty remaining jurors shall thereupon be summoned, as provided by law, to appear in court on the day fixed for the trial. They shall not be bound to attend unless when summoned they are paid or tendered their fees for one day's attendance and mileage from their place of residence, if they demand. it. When the venire is issued for said jurors, either party shall have the right, upon payment of his fees, to demand of the Clerk a duplicate of the venire, and he, or any citizen of the state in his behalf, may serve the same, which service shall have the same effect as if made by the Sheriff of the county. If on the day they are directed to attend, less than thirty jurors are in attendance, or if any of the jurors in attendance are for good cause or by consent of the parties excused by the court, so as to reduce the number below thirty, the court shall thereupon, if either party demand it, draw from the jury box an additional list of names, not less than double the number so deficient, who shall be summoned as herein provided to attend forthwith or on any day to which the trial may be adjourned; and this process shall be continued till there are at least thirty jurors for the parties to choose from; provided, that if any juror disobey the summons to attend, the court shall, if either party demand it, compel his attendance by attachment before summoning additional jurors, unless the court be satisfied that such attendance cannot be enforced within a reasonable time. When the attendance of not less than thirty jurors is secured, unless the parties consent to choose from a smaller number, said jurors may be sworn and examined by the parties on their voir dire, and after such examination, the plaintiff first, and then the defendant, shall strike from the list one juror alternately till the number is reduced to twelve, or such less number as the parties may consent to, who shall be sworn to try the case; provided, that if there be an uneven number of jurors to be stricken off, the court shall strike off the last one; and if at any stage of the proceedings a party unreasonably delays to strike off a juror in his turn, the court shall strike for such party so delaying to strike. As amended, Stats. 1875, 64. RIGHT TO JURY IN EQUITY CASE. In a purely equity case; the calling of a jury is a matter of discretion with the Judge and not a matter of right in the parties. Van Vliet v. Olin, 4 Nev. 95.

Oath Administered to Jury.

6----

3257. SEC. 162. As soon as the jury is completed, an oath or affirmation shall be administered to the jurors, in substance that they, each of them, will well and truly try the matter in issue between_‒‒‒ the plaintiff, and________, the defendant, and a true verdict render according to the evidence. After the oath or affirmation has been administered and the jury has been fully impaneled, it shall be the duty of the court to order the jury into the custody of the Sheriff, or other officer selected by the court, and the jurors shall not be allowed to separate or depart from the custody of the Sheriff or other officer until they have been duly discharged, unless by the consent of the parties to the action. It shall be the duty of the Sheriff, at the charge of the parties to the action, to prepare suitable and comfortable apartments, and prepare food for the jury pending the trial.

Challenge to Jurors--Four Peremptory Challenges.

3258. SEC. 163. Either party may challenge the jurors; but when there are several parties on either side, they shall join in a challenge before it can be made, unless the court otherwise order or direct. The challenges shall be to individual jurors, and shall either be peremptory or for cause. Each party shall be entitled to four peremptory challenges.

Challenge for Cause For What Taken.

J. C.

3259. SEC. 164. Challenges for cause may be taken on one or more of the following grounds: First-A want of any of the qualifications prescribed by

43

statute to render a person competent as a juror. Second-Consanguinity or affinity within the third degree to either party. Third--Standing in the relation of debtor or creditor, guardian and ward, master and servant, employer and clerk, or principal and agent, to either party; or being a member of the family of either party; or a partner, or united in business with either party; or being security on any bond or obligation for either party. Fourth-Having served as a juror or been a witness on a previous trial between the same parties for the same cause of action; or being then a witness therein. Fifth-Interest on the part of the juror in the event of the action, or in the main question involved in the action; except the interest of the juror as a member or citizen of a municipal corporation. Sixth-Having formed or expressed an unqualified opinion or belief as to the merits of the action, or the main question involved therein; provided, that the reading of newspaper accounts of the subject matter before the court shall not disqualify a juror either for bias or opinion. Seventh--The existence of a state of mind in the juror evincing enmity against or bias to either party. Section 164 made applicable to justices' courts by Section 548 of this Act.

1. GROUNDS OF CHALLENGE FOR CAUSE TO BE SPECIFIED. The grounds of challenge to jurors for cause are pointed out by statute, and a party desiring to have such challenge tried must specify the ground or grounds upon which he bases it. Estes v. Richardson, 6 Nev. 128.

JUROR-CHALLENGE FOR CAUSE. Where a juror on examination as to his qualifications said that he had heard something of the matter, and had an impression which it would require testimony to remove, that he had no bias and his impression was very vague, and that he had never talked with any one who pretended to know the facts: Held, that a challenge for cause was properly overruled. Id.

2. CHALLENGE FOR CAUSE-Injury to Party by Refusal Discussed. Fleeson v. Savage S. M. Co., 3 Nev. 157.

3. CHALLENGE OF JUROR-DUTY OF PARTY CHALLENGING. Where information before the court is insufficient to determine cause of challenge, party challenging should at least offer to prove the grounds. Weill v. Lucerne M. Co., 11 Nev. 200.

Challenge for Cause, How Tried.

3260. SEC. 165. Challenges for cause shall be tried by the court. The juror challenged, and any other person, may be examined as a witness on the trial of the challenge.

Juror Becoming Sick, Effect of.

ARTICLE II.

Conduct of the Trial.

3261. SEC. 166. If, after the impaneling of the 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 a new jury may be sworn, and the trial begin anew; or the jury may be discharged, and a new jury then or afterwards impaneled.

Charge to Jury.

3262. SEC. 167. In charging the jury the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it shall also inform the jury that they are the exclusive judges of all questions of fact. The court shall furnish to either party, at the time, upon request, a statement in writing of the points of law contained in the charge, or shall sign, at the time, a statement of such points prepared and submitted by the counsel of either party. As amended, Stats. 1889, 18. 1. PROVINCE OF INSTRUCTIONS. To inform the jury what the law is connected with the case in hand and show them how to apply it to the particular facts involved. State v. Levigne, 17 Nev. 435.

2. CHARGE, WHEN PROPERLY REFUSED. It is proper for a court to refuse instructions containing correct principles of law, if there is no evidence before the jury making them applicable to the case on trial. Sherman v. Dilley, 3 Nev. 22.

3. INSTRUCTIONS AT PARTY'S OWN REQUEST--Estoppel. Gillson v. Price, 18 Nev. 109; Meyer v. V. & T. R. Co., 16 Nev. 341.

4. When a court is laying down a general rule of law, it is not improper to notice exceptions to the general rule or such circumstances as will prevent its operation. Van Valkenburg v. Huff, 1 Nev. 142.

5. FACTS PROVED AND NOT CONTROVERTED NEED NOT GO TO THE JURY. It is no error for a court in its charge to take from the consideration of the jury a fact proven by one party and not controverted by the other. Sharon v. Minnock, 6 Nev. 377.

6. INSTRUCTION INAPPLICABLE TO ISSUE.

A judgment will not be reversed on account of an erroneous instruction, when it appears that it was not applicable to the issues and could not have injured. Brown v. Lillie. 6 Nev. 244.

7. WHOLE CHARGE TO JURY TO BE CONSIDERED AS ENTIRETY. Caples v. C. P. R. Co., 6 Nev. 265; Allison v. Hagan, 12 Nev. 38; Solen v. V. & T. R. Co., 13 Nev. 106.

8. CHARGE TO JURY-Error-In Case of Money Account, Bill of Particulars. Huguet v. Owen, 1 Nev. 464.

9. CHARGE TO JURY- Error - Proper Measure of Damages. Harvey v. Sides S. M. Co., 1 Nev. 539.

10. CHARGE OF THE JUDGE UPON THE FACTS. An instruction of the court, assuming as a fact that A was a creditor of B, where this was a fact in issue in the case, was clearly erroneous. Gaudette v. Travis, 11 Nev. 149; Tognini v. Kyle, 17 Nev. 209.

11. ERROR IN CHARGE. Action for water right and mill site, error to charge that plaintiff must prove right to premises and damages. Dillon v. Sherman, 2 Nev. 67.

12. INSTRUCTIONS. The rule that a judgment must be reversed where instructions on a material point are contradictory, is not an absolute and unqualified rule. Rule explained. Lobdell v. Hall, 3 Nev. 507.

INSTRUCTIONS GIVEN OR REFUSED by the lower court will not be inquired into on appeal, unless the record shows that the giving or refusal to give them was excepted to at the time. Id.

13. INSTRUCTIONS-Evident Meaning Versus Literal Language-Theory Regarding Ledge-Instruction that it Must Be Conclusively Established, Error. Silver M. Co. v. Fall, 6 Nev. 116.

14. CHARGE REFUSED-ERROR. When a plaintiff claims water on the ground of prior appropriation, it is error in the court to refuse an instruction to this effect: "The plaintiff is not entitled to any greater quantity of the water of Desert creek than he actually appropriated prior to defendant's appropriation." Lobdell v. Simpson, 2 Nev. 274.

15. "CHARACTER" OF INJURED PERSON NOT INVOLVED IN SUIT FOR NEGLIGENCE. An instruction submitting it to the jury for such purpose is error. Johnson v. Wells, Fargo & Co., 6 Nev. 224.

PRESUMPTION THAT JURIES FOLLOW INSTRUCTIONS. The presumption in all cases of jury trials is that the jury apply the law as given by the court, and upon such law and the evidence render their verdict; and no appellate court can decide the effect of the one separate from the other. Id.

16. ACTION FOR COUNSEL FEES, TRAVELING EXPENSES, ETC.-Charge to Jury. Hardy v. Ophir Co., 4 Nev. 304.

17. MODIFICATION OF PROPER INSTRUCTIONS-Error-Action on Insurance Policy. Gerhauser v. North British Co., 6 Nev. 15.

18. INSTRUCTION REMOVING QUESTION OF FACT FROM JURY PROPERLY REFUSED. Reiterations in instructions may be stricken out. Gerhauser v. N. B. Ins. Co., 7 Nev. 176.

19. SUBMITTING REJECTED PORTIONS ONLY PARTLY OBLITERATED. No error, unless objected to and rewriting refused. Allison v. Hagan, 12 Nev. 38.

20. EQUITY CASE BEFORE JURY. If an equity case is treated as an ordinary action at law, and submitted to a jury as such, and the court considers itself bound and controlled by the verdict as in an action at law, each party has the same right with respect to instructions as if it were a case at law. Van Vliet v. Olin, 4 Nev. 95.

REFUSAL OF INSTRUCTIONS. Held, error in such case. Id.

21. WHEN PROPERLY DENIED. Instructions as to the law under a certain state of facts are properly denied when the uncontroverted evidence shows such facts do not exist. Shields v. Ditch Co., 23 Nev. 349.

22. INSTRUCTIONS-WHERE NO INJURY OCCURS. Court will not consider whether correct or not. Smith v. Lee, 10 Nev. 208.

23. WHEN NOT PREJUDICIAL. When upon the appellant's own showing of facts, the judgment if rendered in his favor, would have to be reversed. Bishop v. Stewart, 13 Nev. 25; Gaudette v. Travis, 11 Nev. 149.

24. STATING TO A JURY A FACT NOT CONTROVERTED-Not Error. Menzies v. Kennedy, 9 Nev. 152.

25. INSTRUCTIONS CALCULATED TO MISLEAD JURY should be refused. Thompson v. Powning, 15 Nev. 195.

26. INSTRUCTION NOT RELEVANT, NOT TO BE GIVEN. The court is not required to instruct the jury upon any question not raised by the pleadings, nor authorized by the evidence, nor at issue in the case. Schaber v. Gilmer, 13 Nev. 330; Longabaugh v. V. & T. R. Co., 9 Nev. 271; Fulton v. Day, 8 Nev. 80; Schissler v. Chesshire, 7 Nev. 427; Tognini v. Hansen, 18 Nev. 61; Meyer v. V. & T. R. Co., 16 Nev. 341.

27. UNINTELLIGIBLE INSTRUCTION PROPERLY REFUSED. Colquhoun v. W. F. & Co., 21 Nev. 459. 28. DIFFERENCE BETWEEN CIVIL AND CRIMINAL PRACTICE AS TO REFUSING INSTRUCTIONS. Gerhauser v. N. B. Ins. Co., 7 Nev. 174.

May Decide in Court or Retire-Duty of Officer-May Appoint Persons to Remain With Officer. 3263. SEC. 168. After hearing the charge, the jury may either decide in court or retire for deliberation. If they retire, they shall be kept together in a room provided for them, or some other convenient place under charge of one or more officers, until they agree upon their verdict or are discharged by the court. The officer shall, to the utmost of his ability, keep the jury separate from other persons. He shall not suffer any communication to be made to them, or make any himself, unless by order of the court or Judge, except to ask them if they have agreed upon their verdict; and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon. Each party to the action may appoint one or more persons, one of whom on each side shall be entitled to remain with the officer or officers in charge of the jury, and to be present at all times when any communication is had with the jury, or any individual member thereof, and no communication, either oral or written, shall be made to or received from the jurors, or any of them, except in the presence of and hearing of such persons so selected by the parties; and in case of a written communication, it shall not be delivered till read by them. As amended, Stats, 1875, 66.

1. SEPARATION OF A JUROR-When Not Prejudicial. Carnaghan v. Ward, 8 Nev. 30. DIFFERENCE BETWEEN "TREATING" A JUROR AND PERFORMING A MERE ACT OF HUMANITY.

There is a marked distinction between the performance of a mere act of humanity or duty for a juror, such as sending at his request for liniment to relieve his pain, and the voluntary offer of civilities, such as the treating with spirituous liquors, passed on in Sacramento and Meredith M. Co. v. Showers, 6 Nev. 291, which neither duty, charity, nor the conventionalities of society require. Id.

2. "TREATING" JURY-Verdict and Judgment Set Aside. Sacto. M. Co. v. Showers, 6 Nev. 291. TAMPERING WITH JURY-Rule. Id.

See Schissler v. Chesshire, 7 Nev. 427.

3. DRINKING SPIRITUOUS LIQUOR BY JUROR. When not furnished by prevailing party will not vitiate verdict. Richardson v. Jones, 1 Nev. 405.

4. WHEN LIQUOR USED TO INTOXICATING EXTENT. Verdict will be set aside. Davis v. Cook, 9 Nev. 134.

5. SEPARATION OF JURY WITHOUT OBJECTION. In absence of showing of harm verdict not disturbed. Menzies v. Kennedy, 9 Nev. 152.

What Papers Jury May Take.

3264. SEC. 169. Upon retiring for deliberation, the jury may take with them all papers (except depositions) which have been received as evidence in the cause, . or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession; and they may also take with them notes of the testimony, or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.

Return for Instructions.

3265. SEC. 170. 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 of any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court, the informa

tion required shall be given in the presence of or after notice to the parties or counsel.

When Discharged Without Verdict.

3266. SEC. 171. In all cases where a 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 is submitted to them, the action may be again tried, immediately or at a future time, as the court shall direct.

Adjournment of Court.

3267. SEC. 172. While the jury are absent, the court may adjourn from time to time in respect to other business, but it shall, nevertheless, be deemed 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 for the day. A final adjournment of the court for the term shall discharge the jury.

Verdict to Be Declared.

3268.

SEC. 173.

When the jury have agreed upon their verdict, they shall be conducted into court by the officer having them in charge; their names shall then be called, and they shall be asked by the court, or the Clerk, whether they have agreed upon their verdict; and if the foreman answer in the affirmative, they shall, on being required, declare the same.

Informality in Verdict May Be Corrected.

3269. SEC. 174. If the verdict be informal or insufficient in not covering the whole issue or issues submitted, the verdict may be corrected by the jury, under the advice, of the court, or the jury may again be sent out.

Clerk to Record Verdict-Jury to Assent To.

3270.

SEC. 175. When the verdict is given, and is not informal or insufficient, the Clerk shall immediately record it in full in the minutes, and shall read it to the jury, and inquire of them whether it be their verdict. If more than onefourth of the jurors disagree, the jury shall be again sent out; but if no disagreement be expressed, the verdict shall be complete, and the jury shall be discharged from the case.

3271. SEC. 176. 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 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 as that nothing shall remain to the court but to draw from them conclusions of law.

1. SPECIAL VERDICT must expressly present all the material facts, so that nothing shall remain for the court but to draw from them the conclusions of law. Knickerbocker v. Hall, 3 Nev. 149.

2. NO LEGAL JUDGMENT ON VERDICT IRRESPONSIVE TO PLEADINGS. If a verdict is absolutely defective under the pleadings, no legal judgment can be entered thereon. Brown v. Lillie, 6 Nev. 177.

Court May Direct Jury to Find Special Verdict.

3272. SEC. 177. 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