and if his heirs or devisees or any of them are within the Territory and competent to act, the court may direct them or any of them, instead of the executor or administrator, to convey the estate in the manner before mentioned, or to join with the executor or administrator in such conveyance.

§ 1321. Every conveyance made in pursuance of such decree shall be effectual to pass the estate contracted for as fully as if made by the contractor himself.

§ 1322. If the defendant in such suit shall neglect or refuse to make a conveyance according to the decree, the court may enter judgment that the plaintiff shall recover judgment for possession of the land contracted for, to hold according to the terms of the intended conveyance, and may issue a writ of seizin thereupon; and the plaintiff, by force of said writ, having obtained possession of the premises, shall hold the same in like manner as if conveyed-in pursuance of the decree.

§ 1323. The preceding section shall not prevent the court from enforc ing their decree, by any other process, according to chancery proceeding. § 1324. If the person to whom the conveyance was to be made shall die before such suit is brought, or before the conveyance is completed, any person who would be entitled to the estate under him as heir, devisee or otherwise, in case the conveyance had been made according to the contract, may commence such suit, or prosecute it if commenced; and the conveyance shall thereupon be so made as to vest the estate in the same persons who would have been so entitled to it.

§ 1325. If the party to whom any such conveyance was to be made, or those claiming under him, shall not commence à suit, as before provided, and if the heirs of the deceased party are under age, or otherwise incompetent to convey the lands contracted for, the executor or administrator of the deceased may file a bill in equity in the supreme court, setting forth the contract and the circumstances of the case, whereupon the court may, by its decree, authorize and require such executor or administrator to convey the estate in the manner the deceased should bave done; and such a conveyance shall be deemed a performance of the contract on the part of the deceased, and sufficient to entitle his heirs, executors, or administrators to demand a performance thereof on his part.

NOTE TO CHAPTER 89.

§§ 1315-1325 are C. L. §§ 1053-1064.

Cases in Hawaiian Reports: Brown v. Koloa, 5 Haw., 68; Hackfeld v. Akina, 6 Haw., 114; Apolo v. Kano, 7 Haw., 756; Opunui v. Kauhi, 8 Haw., 649; Ice Co. v. Electric Co., 9 Haw., 436; Harrison v. Gear, 10 Haw., 395.

CHAPTER 90.

JURIES AND TRIAL BY JURY.

DRAWING OF JURIES.

§ 1326. A clerk of court, in concert with a circuit judge, shall prepare semiannually, in the months of March and September, a list of the names of one hundred persons in the first circuit, and of fifty persons in each of the other circuits, residing within their respective circuits who, in the opinion of such clerk or judge, are fit to serve as jurors. Each list shall be signed by the clerk and judge. Said clerks shall write each name on a separate piece of paper, and deposit the same in appropriate boxes.

[§ 1327.]

§ 1328. The respective clerks, at least twenty days before the sitting of any court, shall draw from the appropriate box the names of thirtysix jurors in the first circuit, and twenty-four in each of the other circuits. Such drawing shall be had in the presence of a circuit judge, who shall certify to the regularity of the proceedings.

[$ 1329.]

$1330. The clerks shall, within twenty-four hours of the drawing of any jurors as aforesaid, transmit to the chief sheriff of the Territory, or the sheriff of the island, the names of all jurors drawn in the manner aforesaid, in order that such jurors may be duly summoned.

[§ 1331.

[$ 1332.

§ 1333. At the trial of any case requiring a jury, in any circuit court, the clerk of the court shall draw such jury, to the number of twelve, from the box containing the names of such persons as have been duly summoned to attend as jurors, and if any of the said twelve be challenged and set aside, he shall continue to draw from said box until twelve impartial jurors are obtained, when they shall be sworn as the jurors for the trial of such cause.

§ 1334. Whenever from any cause a less number than twenty-four properly qualified jurors out of any panel are in attendance at any term of the circuit court in any circuit, or whenever during the term of any circuit court, for any reason, the available number of properly qualified jurors from either panel now authorized by law is less than twenty-four, the circuit judge, together with a clerk of court, may forthwith, in the discretion of such judge, draw from the circuit at large in the manner provided in section 1335 a new panel, or a sufficient number to make up a panel of thirty-six in the first circuit and twenty-four in the other circuits; and the persons so drawn shall serve for the remainder of the term for which they were drawn, together with the qualified members of the old panel, if any.

$1335. Such circuit judge, together with a clerk of the circuit court or of the judiciary department, shall draw such additional panel as follows: Such judge shall select the names of fifty persons; and from said fifty shall draw by lot so many names as may be required to make the panel full.

§ 1336. The circuit judges may draw successive panels in the manner aforesaid as many times as may be necessary.

§ 1337. Whenever a sufficient number of jurors, regularly summoned, do not appear, or can not be obtained, to form a jury in any case, civil or criminal, in the circuit court of the first circuit, the court may order the chief sheriff to summon talesmen. Two talesmen may be summoned from among the bystanders, if no objection is made by any party to the cause. If more than two talesmen should be required, or if objection be made to summoning any bystander, the clerk shall draw such number of names as may be required from a box containing all the remaining names of the one hundred last semiannually selected as jurors by the clerk, in concert with some judge, as provided by law. Whenever said list shall be exhausted before proceeding with the trial of the cause before the court, a new list of fifty names shall be prepared in the manner provided by law, and such talesmen as may be required shall be drawn by the clerk from such list. And new lists of fifty names shall be prepared from time to time, as may be required. The persons whose names are so drawn shall be forthwith summoned to appear as jurors in the cause on trial.

§ 1338. The chief sheriff or his deputy shall summon the number so ordered, and return their names into court. Every person so summoned shall attend forthwith and serve as a juror, unless excused by the court; and for every neglect or refusal so to attend shall be answerable to the court in the same manner as jurors regularly summoned as herein before provided. The persons as summoned shall be subject to challenge as other jurors.

[§ 1339.]

§ 1340. In the several other circuit courts of the Territory, whenever a sufficient number of jurors duly summoned do not appear, or whenever from challenges or other causes a sufficient number of the regular panel can not be obtained for the trial of any case or cases, the court may order the sheriff or any of his deputies to summon from among the bystanders or from the circuit at large so many persons to serve as jurors as shall be sufficient.

[§ 1341.]

§ 1342. In all cases, civil or criminal, either party may challenge any juror drawn for such trial, for cause to be assigned to the presiding judge, who may determine the validity of the objection urged against the competency of such juror, or submit the question to the determination of three triors to be appointed by him.

§ 1343. In addition to the challenges of jurors allowed in section 1342, the government in criminal cases, and the plaintiff and defendant in all trials by jury, civil or criminal, except as provided in section 1344, shall each be allowed to peremptorily challenge three jurors without assigning any reason therefor; but where there are several parties on either side they must join in such challenges.

§ 1344. Any person who is put on trial for an offense for which, if convicted thereof, such person may be punished with death or imprisonment for life, shall be allowed to challenge peremptorily twelve of the persons called as jurors, and no more; and the attorney appearing for the government in such case shall be allowed to challenge peremptorily six of the persons called as jurors, and no more.

§ 1345. No jury for the trial of any case, civil or criminal, shall be less than twelve in number; but when nine of such jury shall agree upon a verdict, they may render the same, and such verdict shall be as valid and binding upon the parties as if rendered by all twelve.

§ 1346. Whenever any jury shall return into court and state that they can not agree upon a verdict, the court may, in its discretion, discharge such jury, or remand them to the jury room for further deliberation.

[§ 1347-1354.]

ISS 1353-1354.].

§1355. The jury shall in all cases be the exclusive judges of the facts in suits tried before them, and the judge or justice presiding at any jury trial (hereinafter named the court) shall in no case comment upon the character, quality, strength, weakness, or credibility of any evidence submitted, or upon the character, attitude, appearance, motive, or reliability of any witness sworn in a cause: Provided, however, That nothing herein shall be construed to prohibit the court from charging the jury whether there is or is not evidence (indicating the evidence) tending to establish or to rebut any specific fact involved in the cause, nor shall it be construed to prohibit the setting aside of a verdict rendered by such jury, in a proper case, as being against the weight of evidence and the granting of a new trial therein.

§ 1356. Unless the parties to the cause on trial, either in person or

through their attorneys, shall file therein their written consent that the court may charge the jury orally, it shall be the duty of the court, except as provided in the next succeeding section, to reduce to writing and read its charge to the jury; and the manuscript of such charge, signed by the court, shall be filed in the cause and shall constitute a part of the record thereof. Whenever and as often as the court shall depart from such duty either party to such suit shall be entitled, as a matter of right, to demand and have granted a new trial of such cause. § 1357. In cases where an official stenographer is present and taking notes of the trial proceedings it shall not be necessary for the court to reduce its charge to writing, but such charge may be orally given and noted by such stenographer. It shall be the duty of the stenographer in such case to transcribe his notes of such charge within one week thereafter, and to file the same, duly certified in said cause; and such transcript may thereafter be used and referred to in like manner as though the same had been written, charged, and filed by the court, as provided in the last preceding section: Provided, however, That if the accuracy of such transcript shall be disputed by either party and a protest against the acceptance of the part or parts thereof which shall be claimed to be inaccurate shall be filed by such party, it shall be the duty of any appellate court before whom such cause shall come for review (unless the parties thereto shall by written stipulation compose such dispute), to first find and declare the true rendering of such part of the charge of the lower court as shall be involved in such dispute and protest.

§ 1358. It shall be the duty of the counsel for the respective parties to a cause to furnish the court with a written memorandum of their request for the charging of the jury upon the points of law involved therein, and it shall not be incumbent upon the court, in cases where the parties are so represented by counsel, to charge the jury upon the law, unless thereto so requested in writing. But in case either party shall be unrepresented by counsel, the court shall charge the jury on his behalf, and the court may, of its own motion, charge the jury upon any point of law involved in the trial.

§ 1359. Where requests for instructions are presented, as hereinbefore provided, an argument thereon may be made by the respective counsel previous to the court passing thereon. Whenever instructions are asked which the court can not give, he shall, in the margin thereof, write the word "refused," and such instructions as the court approves he shall designate by writing in the margin the word "given." It shall also be competent for the court to modify an instruction so requested, and to give it in its modified form, but in such manner that it shall distinctively appear what instruction was given and what refused, in whole or in part. All written requests for instructions shall be filed in the cause, and shall form a part of the record therein; and the court shall in no case orally qualify, modify, or explain the same to the jury.

§ 1360. Upon the trial by jury of any civil case except in action for slander, libel, criminal conversation, seduction, malicious arrest, malicious prosecution, and false imprisonment, the court, by the consent of parties, instead of directing the jury to give a general verdict, may direct the jury to answer any questions of fact stated to them by the court for that purpose, and in such case the jury shall answer such questions and shall not give any verdict, and on the finding of the jury on the questions which they answer, the court shall enter the verdict, and the verdict so entered shall be as effectual, and shall

be open to the same objections and modes of attack (if moved against) as if the same had been the verdict of the jury.

§ 1361. In the challenging of jurors, the following order and sequence shall be observed, namely: The plaintiff, in civil actions, and the government, in criminal cases, shall first challenge for cause, after which the defendant or defendants shall challenge for cause. After the challenges for cause, if any, shall have been determined, the government or plaintiff (as the case may be), and the defendant, shall alternately state their peremptory challenges, if any, the government or plaintiff beginning and the defendant ending. In case there shall be two or more defendants in any criminal case, they shall not be obliged to join in any challenge, but they shall each be permitted to challenge separately as many jurors as the law shall allow to any separate or sole defendant under like circumstances. The order of precedence of their challenges, if not agreed upon by them, shall be determined by the court.

§ 1362. At the close of the evidence (unless the court shall direct a nonsuit, or order a verdict for the defendant), the respective parties, or their counsel, shall be entitled to sum up the facts to the jury. In their addresses to the jury they shall be allowed ample scope and latitude for argument upon, and illustration of any and all facts involved in the cause, and of the evidence tending to either prove or disprove the same. They shall not be forbidden to argue the law of the case to the jury, but they shall not assume to instruct the jury upon the law, in such manner as to encroach upon the function of the court to so instruct the jury.

§ 1263. The government or plaintiff, as the case may be, shall be entitled to open the case to the jury and to present the proofs. If the defendant shall present any evidence, he or his counsel, shall first, after the close of the evidence, address the jury upon the facts, after which the opposite side shall be entitled to the closing argument upon the facts.

NOTE TO CHAPTER 90.

§§ 1328$1334

1339–

$1326 is S. L. 1870, ch. 17, C. L., p. 358. § 1327 is S. L. 1888, ch. 37, §5. 1330 are S. L. 1870, ch, 17, C. L., p. 358. §§ 1331-1333 are C. L., §§ 1196-1198. 1326 are L. R., act 2. §1337 is S. L. 1890, ch. 26. § 1338 is C. L., § 1200. 1341 are S. L., 1892, ch. 7. § 1342 is C. L., § 1202. § 1343-1344 are S. L. 1888, ch. 24. SS1345-1352 are C. L., SS 1203-1211. §§1353-1354 are S. L. 1865, C. L., p. 362. §§13551363 are S. L. 1892, ch. 56.

Cases in Hawaiian Reports: R. v. Cornwell, 3 Haw., 165; R. v. Camacho, 3 Haw., 385; Minister v. Loo Ngawk, 4 Haw., 439; Estate Queen Emma, 5 Haw., 501; R. v. Macfarlane, 7 Haw., 352; Ahlo v. Tai Lung, 9 Haw., 273; Govt. v. Gertz, 9 Haw., 290; R. v. Pahu, 10 Haw., 74; Dowsett v. Maukeala, 10 Haw., 166; R. v. Ah Ping, 10 Haw., 459; Goo Kim v. Holt, 10 Haw., 653.

CHAPTER 91.

EVIDENCE.

PART I.-MEANS OF OBTAINING EVIDENCE.

§ 1364. The clerks of the several courts of record shall issue to the attorney-general or to the chief sheriff or to any sheriff or deputy sheriff, and to any party plantiff or defendant, in any cause, civil or criminal depending before such courts respectively, or to the counsel of such party, writs of subpoena for witnesses, in blank, that the