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a finding thereon. The verdict shall be filed with the clerk, and entered in the minutes of the cause. When a special finding of the facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.
SEC. 149. When a verdict is found for the plaintiff, in an action for the recovery of money, or for the defendant when a counter claim for the recovery of money is established, exceeding the amount of the plaintiff's claim as established, the jury shall also find the amount of the
recovery SEC. 150. In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury, if their verdict be in favor of the plaintiff, or if being in favor of the defendant, they also find that he is entitled to a return thereof, shall find the value thereof, and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property.
Sec. 151. Judgment shall immediately be entered upon the verdict, unless the cause be for some reason further postponed by the court.
TRIAL BY THE COURT. Sec. 152. Trial by jury may be waived by the several parties. to an issue of fact, in actions arising on contract, and with the assent of the court, in other actions in the manner following : First, By failing to appear at the trial. Second, By written consent, in person or by attorney, filed by the clerk. Third, By oral consent. in open court entered in the minutes.
SEC. 153. Upon the trial of an issue of fict by the court, it shall state the fact found, and judgment shall be entered accordingly.
Sec. 154. Chancery cases may be tried by the court, with or without the finding of a jury, upon issue formed by the court; and on a judgment upon an issue of law, if the taking of an account be necessary to enable the court to complete the judgment, a reference may be ordered.
REFERENCES AND TRIAL BY REFEREES.
SEC. 155. All or any of the issues in the action, whether of fact, of law, or both, may be referred, upon the written consent of the parties.
Sec. 156. When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases :
Sec. 157. When the trial of an issue of fact shall require the examination of a long account, on either side, in which case the referee may by directed to hear and decide the whole issue, or to report 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 upon on issue of law, or for carrying a judgment or order into effect, or when a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action.
SEC. 158. When it is necessary for the information of the court in a special proceeding.
Sec. 159. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties. If the parties do not agree, the court or judge may appoint one or more, not exceeding three.
Sec. 160. When the appointment of the referees is made by the court or judge, each referee shall be, First, Qualified as a juror, as provided by statute. Second, Competent as a juror between the parties.
Sec. 161. When the referees are chosen by the court, each party shall have the same right to challenge as to such referees to be made and determined, in the same manner and with like effect as in the formation of juries, except that neither party shall be entitled to peremptory challenge, subject to the limitations and directions prescribed in the order of reference. The trial by referees shall be conducted in the same manner as trial by the court. They shall bave the same power to grant adjournments, administer oaths, to preserve order, and punish all violations thereof upon such trial, and compel the attendance of witnesses, and punish them for nonattendance or refusal to be sworn to testify, as is possessed by the court.
Sec. 162. The report of the referees shall state the facts found, and when the order of reference includes an issue of law, it shall state the conclusions of law separately from the facts. The referees shall file with their report the evidence received upon the trial. If evidence offered by either party shall not be admitted upon the trial, and the party offering the same shall except to the decision rejecting such evidence at the time, the exception shall be noted by the referees, and they shall take and receive such testimony and file it with the report. Whatever judgment the court may give upon the report, it shall, when it appears that such evidence was frivolous or inadmissible, require that the party at whose instance it was taken and reported to pay all costs and expenses thereby incurred.
Sec. 163. The report shall be filed with the clerk. If it be filed in term time, either party may, within such time as may be prescribed by the rules of the court or by special order, move to set the same aside, or for judgment thereon, or such order or proceedings as the nature of the case may require. If the report be filed in vacation, the like proceedings may be had at the next term following. The court may affirm or set aside the report, either in whole or in part. If it affirm the report, it shall give judgment accordingly. If the report be set aside, either in whole or in part, the court may make another order of reference as to all, or so much of the report as is set aside, to the same referees, or others, or it may find the facts and determine the law itself, and give judgment accordingly. Upon a motion to set aside a report, the conclusion thereof shall be deemed and considered as the verdict of a jury.
Sec. 164. An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be by jury, or in the admission of evidence, or in the charge to a jury, or at any time from the calling of the cause to the rendering of the verdict or decision. But no exception shall be regarded on a motion for a new trial, or on an appeal, unless the exception be material and affect the substantial rights of the parties.
Sec. 165. The point of the exception shall be particularly stated and shall be delivered to the judge, who shall, if the same is conformable to the truth, sign the same, and if the same is not conformable with the facts, it shall be corrected by the court until it is made so; when it shall be signed by the judge and filed with the clerk.
SEC. 166. 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, but no more, and the whole as briefly as possible.
Sec. 167. When a cause has been tried by the court or by 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 a motion for a new trial or appeal, without any special notice that an exception is taken thereto.
SEC. 168. 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 in action at law, but in chancery cases such re-examination shall be called a re-hearing, and motions for a new trial or rehearing, as the case may be, shall be conducted as in this article provided.
SEC. 169. The former verdict or other decision may be vacated and a new trial or re-hearing granted on the application of the party aggrieved, for any of the following causes materially affecting the substantial rights of such 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, Misconduct of the jury. Third, Accident or surprise which ordinary prudence could not have guarded against. Fourth, Newly-discovered evidence, material for the party making the application, but 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, That the verdict is contrary to law, evidence, or both. Seventh, Error of law occurring at the trial and excepted to by the party making the application.
SEC. 170. When the application is made for a cause mentioned in the first, second, third and fourth subdivisions 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 section.
Sec. 171. The party intending to move for a new trial or rehearing shall give notice of the same within two days after the trial, and shall, within five days after such notice, prepare and file with the clerk the affidavit required by the last section, or a statement of the grounds upon which he intends to rely. If no affidavit or statement be filed within five days after the notice, the right to move for a new trial shall be deemed to have been waived. The statement shall contain so much of the evidence or reference thereto, as may be necessary to explain the grounds taken, and no more. Such statement, when containing any portion of the evidence of the case, and not agreed to by the adverse party, shall be settled by the judge upon notice. On the argument, reference may also be made to the pleadings, depositions and documentary evidence on file and in the minutes of the court. If application be made upon the 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.
Sec. 172 The application for a new trial or re-hearing shall be made at the earliest period practicable after filing the affidavit or statement.
Sec. 173. 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 same, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings.
Sec. 174. 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. 175. If a counter claim established at a trial exceeds the plaintiff's demand so established, judgment for the defendant shall