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of the issues, either in favor of the plaintiff or defendant.

A special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict shall present the conclusions of fact as established by the evidence, and not the evidence to prove them ; and those conclusions of fact shall be so presented as that nothing shall remain to the court but to draw from them conclusions of law.

Sec. 17. In all actions, the jury, unless otherwise directed by the court, may, in their discretion, render a general or special verdict: but the court shall, at the request of either party, direct them to find a special verdict in writing upon all or any of the issues; and in all cases, when requested by either party, shall instruct them, if they render a general verdict, to find specially upon particular questions of fact, to be stated in writing. This special tinding shall be recorded with the verdict.

Sec. 18. When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.

Sec. 19. In actions for the recovery of money, the jury shall assess the amount of the recovery.

Sec. 20. In actions for the recovery of specific personal property, the jury must assess the value of the property, as also the damages for the taking or detention, whenever, by their verdict, there will be judgment for the recovery or return of the property.

CHAPTER 89.

TRIAL BY THE COURT.

SECTION

1. How trials by jury may be waived.

SECTION
2. How the finding shall be stated in the

trial of question of fact by the court.

SECTION 1. The trial by jury may be waived by the parties in actions arising on contract; and with the assent of the court, in other actions, in the following manner:

1. By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney.

2. By written consent in person, or by attorney, filed with the clerk.

3. By oral consent in open court, entered on the record.

Sec. 2. Upon trials of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case, the court shall state, in writing, the conclusions of fact found, separately from the conclusions of law, and judgment shall be entered accordingly.

CHAPTER 90.

TRIAL BY REFEREES.

SECTION

Section 1. Issues may be referred.

5. Referees shall sign exceptions. 2. When the court may order a reference. 6. Judge in vacation may make a reference. 3. How trial by referees shall be conducted. 7. Refe shall be sworn. 4. How referees shall be appointed.

8. Compensation of referees. SECTION 1. All or any of the issues in the action, whether of fact or law, or both, may be referred upon the written consent of the parties, or upon their oral consent entered on the record.

Sec. 2. When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in either of the following cases:

1. When the trial of an issue of fact shall require the examination of a long account on either side, in which case the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or,

2. When the taking of an account shall be necessary for the information of the court, before judgment in cases which may be determined by the court, or for carrying a judgment into effect; or,

3. When a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action.

Sec. 3. The trial before referees shall be conducted in the same manner as a trial by the court. They shall have the same power to summon and enforce the attendance of witnesses, to administer all necessary oaths in the trial of the case, and to grant adjournments as the court upon such trial. They shall state the facts found, and the conclusions of law, separately, and their decisions shall be given, and may be excepted to and reviewed, in like manner. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report shall have the effect of a special verdict.

Sec. 4. In all cases of reference, the parties may agree upon a suitable person or persons, not exceeding three, and the reference shall be ordered accordingly; and if the parties do not agree, the court shall appoint one or more referees, not exceeding three, who shall be free from exception.

Sec. 5. It shall be the duty of the referees to sign any true exceptions taken to any order or decision by them made in the case, and return the same with their report to the court.

Sec. 6. A judge of the circuit court in vacation, upon the written consent of the parties, may make any order of reference which the court could make in term time. In such case the order of reference shall be made on the written agreement of the parties to refer, and shall be filed with the clerk with the other papers in the case.

Sec. 7. The referees shall be sworn or affirmed well and faithfully to hear and examine the cause, and to make a just and true report therein according to the best of their understanding. The oath may be administered by any one authorized to take depositions.

SEC. 8. The referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as a part of the costs in the case.

CHAPTER 91.

OF EXCEPTIONS.

SECTION

1. What shall be deemed an exception.
2. The time and manner of an exception.
3. The form of an exception.
4. How an exception may be taken when

decision is entered of record,

SECTION
5. How an exception may be taken when

the decision is not entered on the

record. 6. Only material exceptions regarded. 7. Exceptions may be withdrawn, &c.

Section 1. An exception is an objection taken to a decision of the court upon a matter of law.

SEC. 2. The party objecting to the decision must except at the time the decision is made ; but time may be given to reduce the exception to writing, but not beyond the terin, unless by special leave of the court. It shall not be necessary to copy a written instrument or any documentary evidence into a bill of exceptions, but it shall be sufficient to refer such evidence, if its appropriate place be designated by the words “here insert."

Sec. 3. No particular form of exception shall be required. The objection shall be stated with so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible.

Sec. 4. Where the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted at the end of the decision that he excepts.

Sec. 5. Where the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing, and present it to the court for its allowance. If true, it shall be the duty of a majority of the judges to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record. If the writing is not true the court shall correct it, or suggest the correction to be made, and it shall then be signed as aforesaid.

Sec. 6. No exception shall be regarded unless it is material, and affect the substantial rights of the party excepting.

SEC. 7. Exceptions taken to the decision of the court may, by leave of the court, be withdrawn from the files by the party taking the same at any time before proceedings in error are commenced, and before the exceptions are recorded.

CHAPTER 92.

OF NEW TRIAL.

SECTION
1. For what reasons a new trial may be

had.
2. When smallness of damages not a cause.
3. When application for a new trial must

be made.
4. How application must be made.

SECTION
5. When and how application must be

made when a discovery is made after

the term. 6. When motion shall be heard. 7, Provisions to apply to trials by court

well as jury.

SECTION 1. A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, report of referees, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of court or referee, or abuse of discretion, by which the party was prevented from having a fair trial.

2. Misconduct of the jury, or prevailing party.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Excessive damages, appearing to have been given under the influence of passion or prejudice.

5. Error in the assessment of the amount of recovery, whether too large or too small, when the action is upon a contract, or for the injury or detention of property.

6. That the verdict, report, or decision, is not sustained by the evidence, or is contrary to law.

7. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.

8. Error of law, occurring at the trial, and excepted to by the party making the application.

Sec. 2. A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action, where the damages shall equal the actual pecuniary injury sustained.

Sec. 3. The application for a new trial must be made at the term the verdict, report, or decision is rendered, and except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within ten days after the verdict, report, or decision was rendered, unless unavoidably prevented.

Sec. 4. The application must be by motion, upon written grounds filed at the time of making the motion. The causes enumerated in subdivisions two, three, and seven of section one of this chapter, must be sustained by affidavits showing their truth, and may be controverted by affidavits.

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