...fifth paragraph only, for reasons which he will state in a separate opinion. * The section provides: "When the evidence is concluded, and before the case...court may of its own motion give like instructions, nnd such instructions as shall be given by the court on its own motion or the motion of counsel shnll...

...part of said Code, permits the plaintiff to dismiss his suit at any time before the same is finally submitted to the jury or to the court sitting as a jury. An exception to this rule Is found In section 1878, Rev. St. 1909, permitting a defendant who has filed...

...matter must be determined by reference to the statute. Section 748, Revised Statutes 1899. provides: "When the evidence is concluded and before the case...court may, of its own motion, give like instructions." Now it has frequently been adjudged in civil cases that there is nothing mandatory in this statute...

...Revised Statutes, 1889, in terms provides that " when the evidence is concluded, and before the cause is argued or submitted to the jury, or to the court sitting us a jury, either party Watson v. Race. may move the court to give instructions on any point of law...