ing formed or expressed an unqualified opinion or belief as to the merits of the action. Seventh. The existence of a state of mind. in such person evincing enmity against, or bias to, either party.

Sec. 226. The objection taken to the appointment of any person as a referee shall be heard and disposed of by the court. Affidavits may be read, and any person examined as a witness, as to such objections.

Sec. 227. The referees or commissioners shall report their findings in writing to the court, within ten days (or within such further time as may be allowed by the court) after the testimony shall have been closed and the facts found, and the conclusions of law shall be separately stated therein. The finding of the referees or commissioner upon the whole issue shall stand as the finding of the court, and upon filing of the finding with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court. The finding of the referees or commissioner may be excepted to and reviewed in like manner as if made by the court. When the reference is to report the facts, the finding reported shall have the effect of a special verdict.

CHAPTER IX.

EXCEPTIONS.

Sec. 228. Exception-what constitutes it.
Sec. 229. Point to be particularly stated.
Sec. 230. No particular form required.

Sec. 231. Special notice not necessary on motion for new trial.

Section 228. An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be by jury, court, or referees, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to a jury; or at any other time, from the calling of the action for trial to the rendering of the verdict or decision. But no exceptions shall be regarded on a motion for a new trial, or an appeal, unless the exception be material and effect the substantial rights of the parties.

Sec. 229. The point of the exception shall be particularly stated, except as provided in relation to instructions, and may be delivered in writing to the judge, or, if the party require it, it shall be written down by the clerk. When delivered in writing, or written down by the clerk, it shall be made comformable to the truth or be at the time corrected, until it is made so comformable. When not delivered in writing, or written down as above, it may

be entered in the judge's minutes, and afterwards settled in a statement of the case as provided in this act: Provided, That if the judge shall in any case refuse to allow an exception in accordance with facts, any party aggrieved thereby may petition the supreme court for leave to prove the same, and shall have the right so to do in such mode and manner and according to such regulations as the supreme court may by rules prescribe.

Sec. 230. No particular form of exception shall be required. The objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more, and the whole as briefly as possible.

Sec. 231. When a cause has been tried by the court or by the referees, and the decision or report is not made immediately after the closing of the testimony, the decision or report shall be deemed excepted to on motion for a new trial, or on appeal, without any special notice that an exception is taken thereto.

CHAPTER X.

NEW TRIALS.

Sec. 232. New trial-what is.

Sec. 233. Former verdict or decision-how vacated.

Sec. 234. Applications-when made on affidavit, and when on

statement.

Sec. 235. What notice required, and statement.

Sec. 236. Judge to state on what grounds granted or refused.

Section 232. A new trial is a re-examination of an issue of fact in the same court, after a trial and decision by a jury, court, or referees.

Sec. 233. The former verdict or other decision may be vacated, and a new trial granted on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of said party: First. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which either party was prevented from having a fair trial. Second. Mis-conduct of the jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict, or to a finding on any question or questions submitted to them by the court, by a resort to the determination of chance, such mis-conduct may be proved by the affidavits of any one or more of the jurors. Third. Accident or surprise, which ordinary prudence could not have guarded against. Fourth. Newly discovered evidence; material for the party mak

ing the application which he could not, with reasonable diligence, have discovered and produced at the trial. Fifth. Excessive damages appearing to have been given under the influence of passion or prejudice. Sixth. Insufficiency of the evidence to justify the verdict, or other decision, or that it is against law. Seventh. Error in law, occurring at the trial, and excepted to by the party making the application.

Sec. 234. When the application is made for a cause mentioned in the first, second, third, and fourth sub-divisions of the last section, it shall be made upon affidavit; for any other cause it shall be made upon a statement prepared as provided in the next sec

tion.

Sec. 235. The party intending to move for a new trial shall give notice of the same as follows: When the action has been tried by a jury, within five days after the rendition of the verdict; and when tried by a referee or by the court, within ten days after receiving written notice of the filing of the finding of the referee or court; when written findings are filed by the court, or of the rendering of the decision of the court; when no findings are filed, provided the decision be rendered in open court, and if rendered at vacation, within ten days after receiving written notice of the filing thereof; and when amendments are filed to remedy defects in the findings, within ten days after receiving written notice of the filing of such amendments. The notice shall designate, generally, the grounds upon which the motion will be made. Within five days after giving such notice, or within such further time, not exceeding twenty days, as the court or judge thereof may, by order, grant, the said party shall prepare and file with the clerk, the affidavit or statement required by the last section, and shall give notice to the opposite party or his attorney, that the statement has been filed, who shall, if he does not agree to the statement as filed, file his amendment to the same, within three days after he receives notice of the statement being so filed, and either party may have the statement settled before the court, or judge, at any time, by giving two day's notice to the opposite party.

If no affidavit or statement be filed within five days after the notice, or within such further time as the parties may agree upon, or the court, or judge thereof, or court commissioner may, by order, grant, the right to move for a new trial shall be deemed waived. When the notice designates, as the ground upon which the motion will be made, the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. When the notice designates, as the ground of the motion, errors in law occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. If no such specifications be made, the statement

shall be disregarded. The statement shall contain so much of evidence or reference thereto as may be necessary to explain the particular points thus specified and no more. When agreed to, it shall be accompanied by the certificate of the parties, or their attorneys, that the same has been agreed upon and is correct. When settled by the judge, the same shall be accompanied with his certificate that the same has been allowed by him and is correct.

On the argument, reference may also be made to the pleadings, depositions, and documentary evidence on file, and to the minutes of the court. If the application be made upon affidavits filed, the adverse party may use counter-affidavits on the hearing. Any counter-affidavits shall be filed with the clerk one day at least previous to the hearing. The affidavits and counter-affidavits, or the statement thus used in connection with such pleadings, depositions, and minutes of the court as are read or referred to on the hearing, shall constitute, without further statement, the papers to be used on appeal from the order granting or refusing the new trial. To identify the affidavits it shall be sufficient for the judge or clerk to endorse them at the time as having been read or referred to on the hearing. To identify any depositions or minutes of the court, read or referred to on the hearing, it shall be sufficient that the judge designate them in his certificate as having been thus read or referred to.

Sec. 236. The application for a new trial shall be made at the earliest period practicable after filing the affidavit or statement, and the court or judge granting or refusing a new trial shall state in writing the grounds upon which the same is granted or refused.

Sec. 238. When case reserved for argument may be brought

up by other party.

Sec. 239. If counter-claim established.

Sec. 240. Judgment for value in case delivery cannot be had. Sec. 241. Judgment book—clerk shall keep.

Sec. 242. If party die.

Sec. 243. What papers shall constitute judgment roll.

Sec. 244. Lien-how long to continue.

Sec. 245. Docket-what constitutes.

Sec. 246. Docket shall be kept open.

Sec. 247. Transcript may be filed with county recorders.
Sec. 248. Satisfaction of judgment.

Sec. 249. Transcript-when shall become lien.

Section 237. When trial by jury has been had, judgment shall be entered by the clerk, in conformity to the verdict, within twentyfour hours after the rendition of the verdict, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings.

Sec. 238. When the case is reserved for argument or further consideration, as mentioned in the last section, it may be brought by either party before the court for argument.

Sec. 239. If a counter-claim, established at the trial, exceed the plaintiff's demand, so established, judgment for the defendant shall be given for the excess, or if it appear that the defendant is entitled to any other affirmative relief, judgment shall be given accordingly.

Sec. 240. In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff and the defendant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.

Sec. 241. The clerk shall keep among the records of court a book for the entry of judgments, to be called the "Judgment Book," in which each judgment shall be entered, and shall specify clearly the relief granted or other determination of the action.

Sec. 242. If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon; such judgment shall not be a lien on the real property of the deceased party, but shall be payable in the course of administration on his estate.

Sec. 243. Immediately after entering the judgment, the clerk shall attach together and file the following papers, which shall constitute the judgment roll: First. In case the complaint be not answered by any defendant, the summons with the affidavit or proof of service, and the complaint, with a memorandum endorsed upon the complaint, that the default of the defendant in not answering was entered and a copy of the judgment. Second. In all other cases, the summons, pleadings, verdict of the jury, or finding of the court, commissioner, or referee, all bills of exceptions taken and filed in said action, copies of orders sustaining or overruling demurrers, a copy of the judgment, and copies of any orders relating to a change of parties.

Sec. 244. Immediately after filing a judgment roll, the clerk