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be. made on his minutes to set aside a verdict and grant a new trial upon exceptions, or as being against evidence, or for insufficient evidence, or for excessive damages ; but such motions in actions hereafter tried, shall only be heard upon the minutes at the same term or circuit at which the trial is had, and if not heard at the same term or circuit in actions hereafter tried, the motion must be made upon a case or bill of exceptions, or upon appeal. When such motion is heard and decided upon the minutes of the judge, an appeal may be taken from such decision, and in case of appeal, a case or bill of exceptions must be prepared and settled in the usual form, and upon which case or bill of exceptions the argument of the appeal must be had.

After the trial of a cause, either party may, in the manner prescribed by law and the rules of the court in which the action is pending, make and settle a case or bill of exceptions, which when settled shall be filed, and when filed after judge ment, shall be attached to and become a part of the judgment roll. Supreme Court Rules, 26, 31.

$ 265. Motions for a new trial on a case or bill of excep a new trial. tions, motions for judgment on a special verdict or case reserv

ed subject to the opinion of the court, shall in the first instance be heard and decided at a special term, unless the justice try. ing the cause shall direct it to be heard in the first instance at a general term. If such order is granted, directing it to be heard at a general term, such motion may then be noticed and brought on to argument by either party at a general term of such court, and the court shall hear and decide the same.

A bill of exceptions taken on the trial could be heard only on appeal at a general term, under the Code of 1848 and 1849. Graham agt. Milliman, How. 435.

A motion to set aside a judgment, upon matters of substance, is not required to be made the first possible opportunity. Lucas vs. Trustees, &c., of the church of Geneva, 4 How. 353.

Motions for

Passed 1851.

4

1849.

the court,

1849.

CHAPTER IV.

Trial by the court.
SECTION 266. Trial by jury how waived.

267. On trial by the court, judgment to be given in twenty days.
268. Exceptions, how and when taken.

269. Proceedings upon judgment on issue of law. § 266. [Sec. 221.] Trial by jury may be waived by the Trial by several parties, to an issue of fact, in actions on contract, waived. and with the assent of the court, in other actions, in the Amended manner following:

1. By failing to appear at the trial.

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

3. By oral consent in open court, entered in the minutes. On trial by

§ 267. [Sec. 222.1 Upon a trial of a question of fact by judgment the court, its decision shall be given in writing, and filed in twenty with the clerk, within twenty days after the court at Amended which the trial took place. . Judgment upon the decision shall be entered accordingly.

What facts necessary to put a cause over the circuit. Pulver vs. Hise. rodt, 3 How. 49, and cases there cited.

This section, so far as it relates to the time for filing, is merely directory. People ex rel. Cahoon et al. agt. Dodge, Judge, &c., 5 How. 47.

§ 268. For the purposes of an appeal, either party may ex- Exceptions cept to a decision on a matter of law arising upon such trial, when within ten days after notice in writing, of the judgment, in the same manner, and with the same effect as upon a trial by Amended jury. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a bill of exceptions or case containing so much of the evidence and such exceptions as may be material to the question to be raised. The bill of exceptions or case shall be settled as provided by the rules of the court, and the

taken.

judge in settling such case shall briefly specify the facts found by him and his conclusions of law.

Where a party moves for a new trial upon a bill of exceptions, he must rely upon the grounds taken, and the points made by him upon the trial, and upon those only. Staring vs. Bowen, 6 Barb. 109.

Where it is sought to review causes commenced before the code took ef. fect, such review must be had under the old law. Scott vs. Becker and others, 3 How. 373. Doty vs. Brown, id. 375; Clarke agt. Crandall, 4 How. 127.

On filing the decision, judgment may be entered immediately. There is no implied stay of proceedings to make a case. Lynde vs. Cowenhoven, 4 How. 327.

The old practice of moving on a case or bill of exceptions, and all the proceedings to obtain a review, are still in force. Thompson vs. Blanchard, 4 How. 260; S. C. 3 How. 399.

Without a stipulation at the trial, a case cannot be turned into a bill of exceptions or special verdict, after judgment of the Supreme Court. Smith and others vs. Caswell, 4 How. 286.

A bill of exceptions should give a plain and concise statement of the facts out of which the questions of law arise. Price vs. Powell, 3 Com. 322.

Where any exception is taken at the trial, the party may make a case, presenting such exception. Huff vs. Bennett, 2 Sand. 703.

The object of a case, made by a party desiring a review upon the evidence appearing on the trial before a referee, is to enable the appellant to call in question the facts stated by the referee in his report. Wilson, receiver, &c., vs. Allen and others, 6 Barb, 542.

See Supreme Court Rules, 15, 19, 20, 21, 24, 27, and sectiou 272 and

notes. Proceed

$ 269. [Sec. 224.] On a judgment for the plaintiff upon an judgment issue of law, the plaintiff may proceed in the manner prescribed

by the first two sub-divisions of section two hundred and fortyAmended sir, upon the failure of the defendant to answer, where the sum1849, 1851.

mons was personally served. If judgment be for the defendant, upon an issue of law, and if taking of an account, or the proof of any fact, be necessary to enable the court to complete the judgment, a reference or assessment by a jury may be ordered, as in that section provided.

on issue of law.

ed.

Amended 1849.

CHAPTER V.

Trial by referees.
SECTION 270. All issues referable by consent.

271. When reference may be compulsorily ordered.
272. Report to stand as decision of the court.

273. Referees, how chosen. $ 270. [Sec. 225.] All or any of the issues in the action, All issues whether of fact or of law, or both, may be referred, upon

by consent. the written consent of the parties.

After service of the reply, motion to refer may be made immediately.
Enos and others agt. Thomas and others, 4 How. 290.

Actions based upon carelessness or negligence cannot be referred. Mc-
Master et al. vs. Booth, 3 Code Rep. 111; S. C. 4 How. 427.
See Supreme Court Rules, 25, 69, 71.

$ 271. [Sec. 226.] Where the parties do not consent, the When re. court may, upon the application of either, or of its own may be

compulso

rily ordermotion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases :

1. Where 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. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or,

3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action. § 272. The trial by referees is conducted in the same man- Trial by

referees, ner as a trial by court. They have the same power to grant how.conadjournments as the court upon such trial. They must state the facts found and the conclusions of law separately, and 1851. 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

Passed

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.

As to the manner of reviewing reports of referees, see Haight vs. Prince, 2 Sand. 720; Graham agt. Milliman, 4 How. 435; Leggett vs. Mott, id. 325; S. C. 2 Sand. 720; La Wall agt. Grigg, 5 How, 158 ; Nones vs. the Hope Mutual Ins. Co. id. 157; Pepper agt. Goulding, 4 How. 310; Rayner vs. Clark and Lawrence, 7 Barb. 581; Enos and others agt. Thomas and Hun. ter, 5 How. 361; Sturgis vs. Merry, 3 How. 418.

The prevailing party may enter judgment on the report of a referee, without any notice of the report to the adverse party. Renouil vs. Harris, 2 Sand. 641.

The referees are, as to matters of fact, merely a substitute for a jury, whose decision upon a question of fact cannot be reversed upon a writ of error. Davis vs. Allen, 3 Com. 168.

A report of referees requires to be confirmed for certain purposes. Grif. fing agt. Slate and Gardner, 5 How. 205.

Judgment upon the report of the referees may be entered without the aid of a judge. Vanyalkenburgh et al. vs. Allendorph et al., 4 How. 39.

Supreme Court Rule, 24. Referees,

$ 273. [Sec. 228 and 229.] In all cases of reference, the

parties, except when an infant may be a party, may agree Amended upon a suitable person, or persons, not exceeding three, and 1949, 1861. the reference shall be ordered accordingly; and, if the parties

do not agsee, the court shall appoint one or more referees, not exceeding three, who shall be free from exception.

how chosen.

CHAPTER VI.

Manner of entering judgment.
SECTION 274. Judgment may be for or against any of the parties.

275. The relief to be awarded to the plaintiff.
276. Rate of damages, where damages are recoverable.
277. Judgment in action for recovery of personal property.
278. Judgment upon issue of law or of fact, to be upon direction

of a single judge, or on report of referees, subject to re

view at general term.
279. Clerk to keep a judgment book.
280. Judgment to be entered in judgment book.
281. Judgment roll.

282. Judgment, in what cases and how to be docketed. Judgment may be for $274. [Sec. 230.] Judgment may be given, for or against or against any of the one or more of several plaintiffs, and for or against one or

. Amended

more of several defendants, and it may determine the ulti

1949,

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