law arising in the case, they may request the officer to conduct them to the court, where the information upon the point of law shall be given, and the court may give its recollection as to the testimony on the point in dispute, in the presence of, or after notice to the parties, or their counsel.

jury.

SEO. 271. That the jury may be discharged by the court on Discharge of account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.

quent trial.

SEC. 272. That, in all cases, where the jury are discharged And subseduring the trial, or after the cause is submitted to them, it may be tried again immediately, or at a future time, as the court may direct.

SEC. 273. That when the jury have agreed upon their verdict, The verdict. they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman. When the verdict is announced, either party may require the jury to be Jury may be polled, which is done by the clerk, or the court asking each juror if it is his verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.

polled.

be in writing

foreman.

SEC. 274. That the verdict shall be written, signed by the Verdict must foreman, and read by the clerk to the jury, and the inquiry and signed by made, "Whether it is their [verdict]." If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the When court verdict is complete, and the jury discharged from the case. however, the verdict be defective in form only, the same may, with the assent of the jury, before they are discharged, be corrected by the court.

SUBDIVISION 3. Verdict.

If,

may correct er

rors in form of verdict.

SEC. 275. That the verdict of a jury is either general or What is a general and spespecial. A general verdict is that of which they pronounce cial verdict. generally, upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is [that] by which the jury finds facts only. It must present the facts as established by the evidence, and not the evidence to prove them, and they must be so presented as that nothing remains to the court but to draw from them conclusions of law.

SEO. 276. That, in every action for the recovery of money only, or specific real property, the jury, in their discretion,

may

jury to find a al verdict.

In what cases

general or spe

either.

render a general or special verdict. In other cases, the court may direct the jury to find a special verdict in writing, upon all Jary may find or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding A special ver- thereon. The special verdict or finding must be filed with the clerk and entered on the journal.

dict.

Judgment. SEO. 277. That, when the special finding of facts is inconsiswhen special is inconsistent tent with the general verdict, the former controls the latter, and the court may give judgment accordingly.

general verdict

Jury must assess the amount of recovery.

What actions

may be submitted to the

SEC. 278. That when, by the verdict, either party is entitled to recover money of the adverse party, the jury, in their verdict, must assess the amount of recovery.

SEO. 279. That the trial by jury may be waived by the parties court, and how, in actions arising on contract, and with the assent of the court in other actions, in the following manner: By the consent of the party appearing, when the other party fails to appear at the trial, by himself or attorney. By written consent, in person or by attorney, filed with the clerk. By oral consent in open court, entered on the journal.

SEO. 280. That, upon the trial 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 the view of excepting to the decision of the court upon the questions of law involved in trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law.

ARTICLE IV. Trial by Referees.

SEO. 281. That all or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties, or upon their oral consent in court, entered upon the journal.

SEC. 282. That, where 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: Where the trial of an issue of fact shall require the examination of mutual accounts, or when the account is on one side only, and it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness to prove the

account; in which cases the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein, or where 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 where a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of an action.

SEC. 283. That a trial before referees is conducted in the Mode of trial. same manner as a trial by the court. They 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 must state Their reportthe facts found and the conclusions of law separately, and their exceptions. decisions must be given, and may be excepted to and reviewed in like manner. The report of the referees upon the whole issue stands as the decision of the court, and judgment may be Judgment. 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 has the effect of a special verdict.

chosen.

SEC. 284. That, in all cases of reference, the parties, except How referees when an infant may be a party, 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.

or justice can

SEC. 285. That a reference, as provided in this chapter, cannot Probate judge be ordered by a District Court, unless by consent of the parties not make a reto the reference and referees.

ference.

sign exceptions

SEC. 286. That it shall be the duty of the referees to sign Referees shall any true exceptions taken to any order or decision by them made when taken. in the case, and return the same with their report to the court making the references.

vacation.

SEO. 287. That a judge, in vacation, upon the written consent Reference in of the parties, may make any order of reference which the court of which he is a member 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 of the court, with the other papers in the case.

ees.

SEC. 288. That the referees must be sworn or affirmed well Oath of referand faithfully to hear and examine the cause, and to make a just and true report therein, according to the best of their understand

Compensation of referees.

What.

When to be taken.

Form of stating exceptions.

Exception how

taken when

ing. The oath may be administered by any person authorized to take depositions.

SEC. 289. That the referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case.

SEC. 290. That an exception is an objection taken to a decision of the court upon a matter of law.

SEC. 291. That the party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term.

SEC. 292. That no particular form of exception is required. The exception must 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. 293. That, where the decision objected to is entered on facts appear 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.

record.

How settled where facts do

record.

SEC. 294. That, where the decision is not entered on the not appear on record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing, and present it to the court for its allowance. If true, To be signed it shall be the duty of a majority of the judges composing the

and tiled.

Immaterial exceptions.

Withdrawing exceptions.

For what caus

es a new trial granted.

court to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record, but not spread at large on the journal. 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. 295. That no exceptions shall be regarded, unless it is material, and prejudicial to the substantial rights of the party excepting.

SEC. 296. That exceptions taken to the decision of any court of record may, by leave of such 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.

ARTICLE V. New Trial.

SEC. 297. That a new trial is a re-examination, in the same court, of an issue of fact after a verdict by a jury, report of a

referce, 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: Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. Misconduct of the jury or prevailing party. Accident or surprise, which ordinary prudence could not have guarded against. Excessive damages, appearing to have been given under the influence of passion or prejudice. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. That the verdict, report, or decision, is not sustained by sufficient evidence, or is contrary to law. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. Error of law occurring at the trial, and excepted to by the party making the application.

es new trial not

SEC. 298. That a new trial shall not be granted on account For what causof the smallness of damages, in an action for an injury to the granted. person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.

SEC. 299. That the application for a new trial must be made When applicaat the term the verdict, report, or decision is rendered, and tion to be made 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 three days after the verdict or decision was rendered, unless unavoidably prevented.

SEC. 300. That the application must be by motion upon Grounds must written grounds, filed at the time of making the motion. The be in writing. causes enumerated in subdivision two, three and seven, of section two hundred and ninety-seven, must be sustained by affi- -Aidavits. davits showing their truth, and may be controverted by affidavits.

term, by action.

SEC. 301. That where the grounds for a new trial could not, Application for with reasonable diligence, have been discovered before, but are new trial, after discovered after the term at which the verdict, report of referee, or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after the discovery; on which, a summons shall issue, Proceedings

thereon.