nous instructions in a simple case not requiring them will be discountenanced: Mutual etc. Life Ins. Co. v. French, 2 Cinn. 321; Fisher v. Stevens, 16 Ill. 397; Hocum v. Weitherick, 22 Minn. 152; State v. Ott, 49 Mo. 326; Ransone v. Christian, 56 Ga. 351; Adams v. Smith, 58 Ill. 417. But in McCaleb v. Smith, 22 Iowa, 242, it was held not a good reason for the refusal to give instructions that they were unnecessarily lengthy and numerous, or that they were submitted so late in the cause that they could not be examined without keeping the jury in waiting. There should be time given for the preparation of instructions; and where a charge in writing is requested, and the presiding judge has not time to prepare it during the trial, an adjournment from one afternoon until the next morning, in order to give time for its careful preparation, is not error: Head v. Bridges, 67 Ga. 227. Instructions should be filed with the clerk before being read by the court to the jury. And the word "given" or "refused" should be written on the margin of each instruction given or requested. But a failure to comply with the statute is not ground of error, unless excepted to: Fry v. Tilton, 11 Neb. 456. It is not a proper mode of requesting instructions to ask the presiding justice "to give proper instructions" upon any particular piece of testimony or fact appearing in the case: Virgie v. Stetson, 73 Me. 452; and the practice of singling out in instructions specific acts, and asking the court to say, as a matter of law, that if these acts are established there can be no recovery, is not permissible: Meyer v. Pacific R. R. Co., 45 Mo. 137. A request to charge which is er roneous in part, as embracing too much, is entirely ineffectual: Hodges v. Cooper, 43 N. Y. 216. Trial courts have the power, by reasonable and proper rules, to prescribe within what time, during the progress of the trial, instructions must be presented. And this discretionary power is not a subject of review: Prindeville v. People, 42 Ill. 217.

In some jurisdictions, the request for instructions must be made before argument, and if not made then, the court need not notice it: Vaughan v. Porter, 16 Vt. 266; Barkman v. State, 13 Ark. 705; Harrison v. Young, 9 Ga. 359; Firman v. Blood, 2 Kan. 496. But it is not fatal error for the court to refuse such request if made before argument, and to afterwards give it of its own motion: See same cases. And the giving of an instruction after the close of the argument before the jury, although irregular, is no ground for the reversal of a cause, where the giving of the instruction could work no harm: Cluskey v. City of St. Louis, 50 Mo. 89. But the more liberal and better practice is for the court to allow instructions to be requested at any time before the jury retire, and if they are unobjectionable, pertinent to the issue, and necessary for the jury to consider in making up their verdict, they should be given by the court, notwithstanding a rule requiring all instructions to be submitted before the commencement of the argument: Billings v. McCoy, 5 Neb. 187; Crippen v. Hope, 38 Mich. 344. A rule of court prohibiting a party from obtaining instructions on any point of law relevant in the case, at any time before the jury retire from the bar, ought not to be made, and if made, ought not to be adhered to: Bell v. North, 4 Litt. 133. So, with a rule requiring a party who desires written instructions to notify the court of such desire before the trial commences: Laselle v. Wells, 17 Ind. 33; Patterson v. Ball, 19 Wis. 243. The law gives litigants a right to instructions before the jury retire, and no court can, by its rules, deprive a person of his legal right: Bell v. North, 4 Litt. 133. But counsel should submit their requests to charge in time to allow them to be examined by the judge: Crippen v. Hope, 33 Mich. 344; Newton v. Newton, 12 Ind. 527. They should not be presented as the jury are leaving the jury-box. It is then too late for counsel to make any

specific charge in the case, especially after the jury have been charged: Tinkham v. Thomas, 2 Jones & S. 236. So after a court has commenced to instruct a jury orally, it is too late for a party to require instructions to be given in writing: Boggs v. Clifton, 17 Ind. 217; Newton v. Newton, 12 Id. 527. So where the request is made during the concluding argument to charge the jury in writing, and not within time to permit the court to reduce all its instructions to writing before being called upon to charge the jury, the court does not err in giving to the jury orally such of its instructions as it did not have time to reduce to writing: Atchison etc. R. R. Co. v. Franklin, 23 Kan. 74. Requests to charge should be presented in the hearing of opposing counsel: Tinkham v. Thomas, 2 Jones & S. 236. If the charge as made omits anything essential, the judge should allow proper requests to be submitted at any time before the jury retire: Crippen v. Hope, 38 Mich. 344. Where a case is tried by the court sitting as a jury, it is improper practice to ask instructions, and a judgment will not be reversed for a refusal to grant them: Clouse v. Maguire, 17 Mo. 158. There is no law prescribing any particular time at which instructions in criminal cases shall be given: Gwatkin v. Commonwealth, 9 Leigh, 678; S. C., 33 Am. Dec. 264.

5. Instructions must be Given when. A party has a right to demand instructions, and, if proper, to insist upon them being given in the terms asked: Clealand v. Walker, 11 Ala. 1058; S. C., 46 Am. Dec. 238; Heaston v. Cincinnati etc. R. R. Co., 16 Ind. 275; S. C., 79 Am. Dec. 430; Pate v. Wright, 30 Ind. 476; Clark v. State, 31 Tex. 574; State v. Wilson, 2 Scam. 225; Hinton v. Nelms, 13 Ala. 222; and the charge of the court must be in writing, if either party objects to its being verbal: See same cases. Where the charge requested is appropriate to the evidence, and conformable to law, it is error for the court to fail or refuse to give it in the language requested: Cole v. Spann, 13 Id. 537; Clealand v. Walker, 11 Id. 1058; S. C., 46 Am. Dec. 238; Washburn v. Tracy, 2 D. Chip. 128; S. C., 15 Am. Dec. 661; Shewmake v. Jones's Ex'rs, 37 Ga. 102; Ivey v. Phifer, 11 Ala. 535; Norwood v. Boon, 21 Tex. 592; Davis v. State, 10 Ga. 101; Galt v. Jackson, 9 Id. 151; Baltimore etc. R. R. Co. v. Laffertys, 14 Gratt. 478; Zabriskie v. Smith, 13 N. Y. 322; Hays v. Borders, 1 Gilm. 46; Earle v. Thomas, 14 Tex. 583; Owings v. Trotter, 1 Bibb, 158; People v. Taylor, 36 Cal. 255; Cotton v. State, 31 Miss. 504; Briggs v. Town of Georgia, 12 Vt. 60; Baltimore etc. R. R. Co. v. Polly, 14 Gratt. 447; Peshine v. Shepperson, 17 Id. 473; and its refusal cannot be excused by giving other charges of equivalent import, either at the time of request or subsequently: Ivey v. Phifer, 11 Ala. 535; Hinton v. Nelms, 13 Id. 222; though in some cases it is sufficient if the court substantially complies with the request by giving the substance of the special instructions asked: Patterson v. McIver, 90 N. C. 493; Dodge v. Rogers, 9 Minn. 223; Fay v. O'Neill, 36 N. Y. 11; Sherman v. Wakeman, 11 Barb. 254; Marshall v. Flinn, 4 Jones, 199; Williams v. Birch, 6 Bosw. 299. In preparing instructions, each party may assume any reasonable hypothesis in relation to the facts of the case, and ask the court to declare the law as applicable to it; and it is error to refuse an instruction so framed because the case supposed does not include some other hypothesis equally rational. Every instruction which correctly declares the law applicable to the case which it supposes, if the case can be rationally inferred from the testimony, should be given: People v. Taylor, 36 Cal. 255. And though an instruction as asked is not wholly correct, yet if the general refusal of it may mislead the jury, the court should accompany the refusal with an explanation to the jury, or should give them an instruction stating the correct proposition: Peshine v. Shepperson, 17 Gratt. 472; Baltimore etc. R. R. Co. v. Polly, 14 Id. 447.

In all cases either party may ask instructions as to the legal effect of the evidence introduced, or of any particular circumstance which may be offered to the jury, and from which the particular matter in controversy is to be deduced: Union Bank v. Kerr, 7 Md. 88; Nailor v. Bowie, 3 Id. 251; Inloes ▼. American Ex. Bank, 11 Id. 173; as upon failure of plaintiff's proof, defendant may ask an instruction that the evidence was not legally sufficient to maintain an action: Nailor v. Bowie, 3 Id. 251; and a party may ask the direction of the court upon the effect of testimony in a case, whether that testimony be offered subject to all objection as to its admissibility and effect or not: Inloes v. American Ex. Bank, 11 Id. 173. In Maryland, it is held that a party has the right to segregate any portion of the facts of a case from the whole body, and ask the instruction of the court upon them; and that it is for the other party, if he desires it, to ask the opinion of the court on the whole testimony: Day v. Day, 4 Id. 262; but see Meyer v. Pacific R. R. Co., 45 Mo. 137, cited supra, in subdivision 4. If there be any evidence introduced tending to prove a fact relied upon by a party to a suit, it is error to refuse instructions putting that fact to the jury: Ridens v. Ridens, 29 Id. 470; Smith v. Johnson, 13 Ind. 224; Gilkey v. Peeler, 22 Tex. 663.

6. Instructions should be Refused when.— Conflicting, indefinite, ambiguous, or misleading instructions should not be given, and it is not error for the court to refuse to do so: Loeb v. Weis, 64 Ind. 286; Stockton v. Frey, 4 Gill, 406; S. C., 45 Am. Dec. 138; Pomroy v. Parmlee, 9 Iowa, 140; S. C., 74 Am. Dec. 328; White v. Thomas, 12 Ohio St. 312; S. C., 80 Am. Dec. 347; Southern R. R. Co. v. Kendrick, 40 Miss. 374; S. C., 90 Am. Dec. 332; State v. Benham, 23 Iowa, 154; S. C., 92 Am. Dec. 417; Briggs v. Town of Georgia, 12 Vt. 60. So the refusal of instructions is not error when they are asked upon immaterial issues; and such refusal is no ground for new trial or reversal: Pomroy ▼. Parmlee, 9 Iowa, 140; S. C., 74 Am. Dec. 328; Jewett v. Lincoln, 14 Me. 116; S. C., 31 Am. Dec. 36; Whidden v. Seelye, 40 Me. 247; S. C., 63 Am. Dec. 661; Conger v. Dean, 3 Iowa, 463; S. C., 66 Am. Dec. 93; Treat v. Lord, 42 Me. 552; S. C., 66 Am. Dec. 298; State v. Shippey, 10 Minn. 223; S. C., 88 Am. Dec. 70. Such instructions, though wrong, are of no avail to a party excepting: Whidden v. Seelye, 40 Me. 247; S. C., 63 Am. Dec. 661. So a court is not bound to give instructions if there is no evidence for a finding. A prayer not based on evidence should be refused: See notes to Blankenship v. Douglas, 82 Am. Dec. 613; Conger v. Dean, 66 Id. 96; Breese v. State, 80 Id. 347; Harvey v. Thomas, 10 Watts, 63; S. C., 36 Am. Dec. 141, note 144; Haines v. Stauffer, 13 Pa. St. 541; S. C., 53 Am. Dec. 493; Farish v. Reigle, 11 Gratt. 697; S. C., 62 Am. Dec. 666; Johnson v. Jennings, 10 Gratt. 1; S. C., 60 Am. Dec. 323; Duggins v. Watson, 15 Ark. 118; S. C., 60 Am. Dec. 560; Andre v. Bodman, 13 Md. 628; S. C., 71 Am. Dec. 628; Cooke v. England, 27 Md. 14; S. C., 92 Am. Dec. 618; Wright v. Welch, 3 McAr. 479; Brown v. State, 28 Ga. 199; Earle v. Thomas, 14 Tex. 583. So instructions based on rejected testimony are properly refused: Pleasants v. Scott, 21 Ark. 370. So may instructions be refused, where they need to be qualified or explained to prevent the jury from being misled: Swallow v. State, 22 Ala. 20; Godbold v. Blair, 27 Id. 592; Dunlap v. Robinson, 28 Id. 100; Hall v. Hunter, 4 G. Greene, 539; Rolston v. Langdon, 26 Ala. 660; or where they have already been given in substance: McGonigle v. Daugherty, 71 Mo. 259; Taber v. Hutson, 5 Ind. 322; S. C., 61 Am. Dec. 96; Abrams v. Foshee, 3 Iowa, 274; S. C., 66 Am. Dec. 77; Raver v. Webster, 3 Iowa, 502; S. C., 66 Am. Dec. 96; Pettigrew v. Barnum, 11 Md. 434; S. C., 69 Am. Dec. 212; McCown v. Schrimpf, 21 Tex. 22; S. C., 73 Am. Dec. 221; People v. King, 27 Cal. 507; S. C., 87 Am. Deo. 95. And it is not

error for a court to refuse to repeat its instructions in different language, but the same in substance, after they have once been given: Holbrook v. Utica etc. R. R. Co., 12 N. Y. 236; S. C., 64 Am. Dec. 502; Halty ▼. Markel, 44 Ill. 225; S. C., 92 Am. Dec. 182; People v. O'Connell, 62 How. Pr. 436; Hocum v. Weitherick, 22 Minn. 152; Wright v. Ames, 28 Id. 362; McGonigle v. Daugherty, 71 Mo. 259; Lloyd v. Moore, 38 Ohio St. 97. Particularly if the charge, or a part of it, was wrong at first: See case last cited. So a charge may be refused without error if it is not applicable to the case: Hall v. Hunter, 4 G. Greene, 539; or some point therein: Miles v. Myers, Walker, 379; or is requested in the alternative, when one of the alternatives is erroneous, although the other may be correct: Berry v. Griffin, 10 Md. 27; S. C., 69 Am. Dec. 123; or where the prayer involves a complicated statement which it would be difficult for the jury to understand: Whiteford v. Burckmyer, 1 Gill, 127; S. C., 39 Am. Dec. 640; or is otherwise improper: Owings v. Trotter, 1 Bibb, 158. A request to charge that one of several matters constitutes a good defense, where each would not do, may be disregarded by the judge: Bowman v. Teall, 23 Wend. 306; S. C., 35 Am. Dec. 562.

Where the evidence is conflicting on a question of fact material to the defense, the plaintiff is not entitled to a charge asserting his right to a recovery on the whole evidence: Woolfork v. Sullivan, 23 Ala. 548; Bernhard v. Brunner, 4 Bosw. 528. If a charge is asked which admits of two constructions, one of which is calculated to confuse and mislead the jury, it may be refused: Rolston v. Langdon, 26 Ala. 660. If the evidence in a criminal case is conflicting, the defendant has no ground of exception to the refusal of the judge to instruct the jury that, if they believe the defendant's testimony, they should acquit him: Commonwealth v. Broadbeck, 124 Mass. 319. So a long string of instructions, loaded with words, running into each other, involved in intricacies, and requiring as much elucidation as the facts of the case themselves, may properly be refused: State v. Mix, 15 Mo. 153; State v. Floyd, 15 Id. 349; Lowry v. Beckner, 5 B. Mon. 42. In Iowa, the practice of giving instructions to the jury, as framed by counsel, was condemned in State v. Collins, 20 Iowa, 85, where the court said that the better practice, as a gen. eral rule, was for the judge to put aside the instructions asked by the respect. ive counsel, and cover the whole ground of the controversy in a corrected and methodical charge of its own, stating the questions of fact to be decided, and the law applicable thereto, under the issues and the evidence. Where the judge wrote upon the margin of the first of several sheets of paper fastened together, and containing instructions asked: "Instructions 1 to 7 all refused," and signed the same, it was held to be in substantial compliance with the statute, requiring the court to write on the margin of each instruction not given the word "refused": Harvey v. Tama Co., 53 Iowa, 228.

A party has no right to ask a new and substantive charge to the jury, on their return into court, before verdict, for further instructions, or for an explanation of the charge previously given, or for the purpose of having it again repeated. The court will not instruct the jury, under such circumstances, upon the motion of either of the parties: Prosser v. Henderson, 11 Ala. 484; Turner v. Foxall, 2 Cranch C. C. 324; Forrest v. Hanson, 1 Id. 63; but it is not error for the court, at the jury's request, to give further information or explanation in open court, when counsel are present: Foster v. Turner, 31 Kan. 58. It is improper, however, to give any instruction to the jury, after they have retired, upon any question not asked by the jury: State v. Brown, 12 Minn. 538; United States v. White, 5 Cranch C. C. 116; Turner v. Foxall, 2 Cr. Ct. 324; Forrest v. Hanson, 1 Id. 63; State v. Pitts, 11 Iowa, 343; or to

give them, even upon request, another full, complete, and different charge upon material questions involved in the issue of the case: Foster v. Turner, 31 Kan. 58. But in Georgia it is error to refuse counsel's request for a proper instruction, upon a point not charged by the court, when the jury return seeking further instructions, and such point is proper for them to consider: Yeldell v. Shinholster, 15 Ga. 189. It is not error for the court below to refuse verbal instructions asked by counsel, if the court correctly give the law. upon all the points arising in the case: Crisman v. McDonald, 28 Ark. 8. If a charge asked embraces several different propositions, some of which are good and some bad, the court may refuse the whole without error, and an appellate court will not consider an exception to the refusal to give the charge in gross: Magee v. Badger, 34 N. Y. 247; S. C., 90 Am. Dec. 691, note 695; Preston v. Leighton, 6 Md. 88; Beaver v. Taylor, 93 U. S. 46; but in West Virginia the good is severed from the bad in such cases, and given to the jury: Peshine v. Shepperson, 17 Gratt. 472; S. C., 94 Am. Dec. 468.

7. New Trial - Reversal of Judgment - Erroneous and Harmless Instructions. - A new trial will be granted where instructions given were conflicting: Pomroy v. Parmlee, 9 Iowa, 140; S. C., 74 Am. Dec. 328. While the refusal of proper instructions, or the giving of improper ones, will not always occasion a reversal of the judgment, yet that is when substantial justice has been done, and the instructions were not of such a character as would tend to mislead the jury on the doubtful facts in the case. The general rule is, that if the instructions are objectionable, and the natural effect would be to mislead the jury where the facts are controverted, the verdict will be set aside, and a new trial awarded: Adams v. Smith, 58 Ill. 417; Kent v. Lawson, 12 Ind. 675; S. C., 74 Am. Dec. 233. If the instruction is such that the ground upon which the verdict was rendered cannot be ascertained, the verdict must be set aside: Holmes v. Doane, 9 Cush. 135. So where the plaintiff seeks to recover upon a double ground, and it is not known upon which ground a verdict was found for him, the appellate court will grant the defendant a new trial for misdirection in matter of law touching either ground of liability: Gill v. Read, 5 R. I. 343; S. C., 73 Am. Dec. 73. But instructions irrelevant to the issue do not per se authorize a new trial: Cannon v. Alsbury, 1 A. K. Marsh. 76. Where error of court in charging the jury, or refusing to charge it, does no injury, as where it could not have altered the verdict, it is not a ground for a new trial: Nicholson v. New York etc. R. R. Co., 22 Conn. 74; S. C., 56 Am. Dec. 390; Western Stage Co. v. Walker, 2 Iowa, 504; S. C., 65 Am. Dec. 789; Ross v. Bank of Burlington, 1 Aik. 43; S. C., 15 Am. Dec. 664; Jewett v. Lincoln, 14 Me. 116; S. C., 31 Am. Dec. 36; Leaptrot v. Robertson, 44 Ga. 46; Union Bank etc. v. Planters' Bank, 9 Gill & J. 439; S. C., 31 Am. Dec. 173; Chase v. Washburn, 1 Ohio St. 244; S. C., 59 Am. Dec. 623; Gunn's Adm'r v. Todd, 21 Mo. 303; S. C., 64 Am. Dec. 231; Hardy v. Colby, 42 Me. 381. But a new trial will be granted, although the party against whom erroneous instructions were given obtains a verdict, if the law was so erroneously stated that the defendant might thereby have been prevented from making his full defense: Clarke v. Diggs, 6 Ired. 159; S. C., 44 Am. Dec. 73. Where the verdict is right and the instructions wrong, it is not ground for a new trial that the jury disregarded erroneous instructions: Armstrong v. Keith, 3 J. J. Marsh. 153; S. C., 20 Am. Dec. 131; Wellborn v. Weaver, 17 Ga. 267; S. C., 63 Aın. Dec. 235; Peck v. Land, 2 Ga. 1; S. C., 46 Am. Dec. 368; Tresca v. Maddox, 11 La. Ann. 206; S. C., 66 Am. Dec. 198; Commonwealth v. Van Tuyl, 1 Met. 1; S. C., 71 Am. Dec. 455; but there are cases holding that the jury must receive the law from the court, and act according to

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