eral or special.

special. A general verdict is that by which they pronounce, Districts, gengenerally, 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 the 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.

Court to direct

SEC. 290. In action for the every of recovery money jury. only, or specific real property, the jury in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict, in writing, upon all 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 thereon. The special verdict or finding must be filed with the clerk, and entered on the journal.

sistant with general verdict.

SEC. 291. When the special finding of facts is incon-alconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.

amount.

SEC, 292. When by the verdict either party is entitled to aseess to recover money of the adverse party, the jury in their verdict must assess the amount of recovery.

TITLE XIV.

Trial by the Court.

ed, when.

SEC. 293. The trial by jury may be waived by the Jery trial waiv parties in actions arising on contracts, and with the assent of the court, in other actions, in the following manner:

First, By the consent of the party appearing, when the other party fails to appear at the trial by himself, or attorney. Second, By written consent in person or by attorney filed with the clerk.

Third, By oral consent in open court entered on the journal.

SEC. 294. Upon the trial of questions of fact by the

Questions of

fact.

Leauce, when referred,

Court may direot a reference, when.

Tria! before referees, how conducted.

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 the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law.

Trial by Referees.

SEC. 295. All or any of the issues in the action, whether of fact or of law, or of both, may be referred, upon the written consent of the parties, or upon their oral consent in court entered upon the journal.

SEC. 296. 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:

First, Where the trial of an issue of fact shall require the examination of mutual accounts, or where 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.

Second, 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.

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

SEC. 297. The trial before referees is conducted in the same manner as a trial by the court. They have the same power to summon and enforce the attendance of witnesses, and to grant adjournments, as the court upon such trial. They must state the facts found and conclusion of law, separately, and their decision 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 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.

SEC. 298. In all cases of reference, the parties, except Parties, when 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, rot exceeding three, who shall be free from exception.

SEC. 290. A reference, as provided in this title, cannot be ordered by a probate court, except by consent of parties, to the reference and referces.

Nor ordered by

probate court.

Duty of ref

SEC. 300. It shall be the duty of the referees to sign any true exceptions taken to any order or decision by them crees. made in the case, and return the same, with their report, to the court making the reference.

tion may make

SEC. 301. A judge in vacation, upon the written Judge in vacaconsent of the parties, may make an order of reference, order. 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.

SEC. 302. The referees must be sworn or affirmed, well and Referees sworn 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 person authorized to take depositions.

SEC. 303. 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.

Exceptions.

SEC. 304. An exception is an objection taken to a decision of the court upon a matter of law.

SEC. 305. The party objecting to the decision, must,

Compensation.

Exception.

Bxception, when made.

except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the

term.

No particular SEC. 306. 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. 307. When the decision objected to is entered on the record, and the grounds of objection appear on the entry, the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts.

SEC. 308. When 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 composing the court, or of the judge or court before whom the case was or is being tried, to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record, but not spread at large upon 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. 309. All exceptions to the rulings of the court shall be allowed and noted in the clerk's minutes of the case, and no exception shall be refused on the ground that it is frivolous or immaterial to the question at issue.

SEC. 310. 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.

TITLE XV.

New Trial.

SEC. 311. A ney trial is a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee, 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:

First, 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.

Second, Misconduct of the jury or prevailing party.

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

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

Fifth, Erior 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.

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

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

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

SEC. 312. A new trial shall not be granted on accunt of the smallness of the damages in an action for an injury to the person or reputation, nor any other action where the damages shall equal the actual pecuniary injury sustained.

SEC. 313. 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 three days after the verdict or decision was rendered, unless unavoidably prevented.

SEC. 314. 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 three hundred and eleven, must be sustained by