Cope, J. concurring.

This was ejectment for a lot in Sacramento city. The question in the case was that of homestead; and upon this claim the plaintiff, Broad-us, seeks to recover the premises against his deed. There was testimony tending to show that the premises were never occupied by the plaintiff and his family with the intention of making them the homestead ; and there was also testimony tending to prove an abandonment of the occupancy of the premises, and a residence on other property as that of the family.

The Court below submitted to the jury this question: “ Did the plaint*81iffs ever dedicate and set apart the real estate described in the complaint as a homestead, by living upon it with the intention so to dedicate it ?” and in this connection told the jury if they found the negative of this fact, they need proceed no further. The jury found that there was no such-dedication. We do not understand that the Court suggested or intimated to the jury how they should find this fact, but merely suggested that the finding in this respect against the plaintiffs would relieve the jury from the necessity of further investigation. We see no abuse of the discretion of the Court in this direction. The decision of this question went to the foundation of the plaintiffs’ action. The finding against them, if warranted by the proofs, was conclusive of all claims to recovery; no other findings could help or hurt the case after this had been made. Wé see no objection to the direction of the jury; such directions are not only frequently convenient in practice, but they conform to the usages in the English Courts, where it is not unfrequent for the Judges to stop the general course of a trial and to direct a finding upon some matter which, decided in a given way, is conclusive of the cause on the merits. It would be an useless consumption of time to proceed to hear and try various issues and matters in dispute, when the decision of one fact is conclusive of the whole case on the merits. An enlarged discretion is given to the lower Courts in the conduct and management of the public business; and with this discretion an appellate tribunal cannot interfere, unless it affirmatively appear that injustice has been done.

Probably the cases of Harper v. Forbes, Guiod v. Guiod, and Gee v. Moore, in this Court, are decisive of this case on other grounds; but it is not necessary to decide this case in connection with the principles there decided.

We see nothing in the record to show,that the jury were not warranted in their finding; and it is not necessary to inquire into other points, this being decisive.

Judgment affirmed.