SEC. 14. A conveyance of real estate, conditioned to be void on the payment of a given sum of money on a given day, otherwise to be and remain in full force and virtue, is a mortgage and not a conditional sale. 4 Cal. 102.

Form of Mortgage of Real Estate.

SEC. 15. The following is a form of mortgage of real estate:

....

....9

between

in the year of our Lord one and

........

This indenture, made the day of thousand eight hundred and the party of the second part, witnesseth, that the said party of the first part, for in consideration of the sum of .... dollars, .... of the United States of America, to .... in hand paid, do grant, bargain, sell, convey and confirm, unto the said party of the second part and to.... heirs and assigns forever, all that certain [here describe the property]. Together with all and singular the tenements, hereditaments and appurtenances, thereto belonging or in any wise appertaining.

....

This conveyance is intended as a mortgage, to secure the payment of the note of which the following is a copy [here copy the note], and these presents shall be void if such payment be made. But in case default be made in the payment of the principal or interest as .... .... ... provided, then the saidparty of the second part, his executors, administrators and assigns, are hereby empowered to sell the said premises with all and every of the appurtenances or any part thereof, in the manner prescribed by law, and out of the money arising from such sale, to retain the said principal and interest, together with the cost and charges of making such sale [here, if such be the agreement, you may insert the payment of fees of attorney]; and the overplus, if any there be, shall be paid by the party making such sale, on demand, to the said party of the first part and his heirs or assigns.

In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written.

Signed, sealed and delivered, in presence of

75

[L.S.]

SECTION 1. 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. Pr. Act, 192.

SEC. 2. A new trial may be granted by the justice, on motion, within ten days after the entry of judgment for any one of the following causes:

1st. Accident or surprise, which ordinary prudence could not have guarded against.

2d. Excessive damages, appearing to have been given under the influence of passion.

3d. Insufficiency of the evidence to justify the verdict or other decision.

4th. Newly-discovered evidence material for the party making the application, which he could not with reasonable diligence have discovered and produced at the time. Pr. Act, 622.

SEC. 3. The power to grant new trials is one exclusively of discretion-a legal discretion. 2 Cal. 182; 22 Cal. 82; 3 Cal. 59; 16 Cal. 358. The terms upon which a court will grant a new trial is also a matter of discretion, which is usually exercised in reference to the conduct, management and peculiar circumstances, of the trial. 13 Cal. 54. Nor will the consent of parties to an action, after trial, that a

new trial be granted, divest a court of its discretion. If it were otherwise, parties would have it in their power to continue litigation indefinitely. 15 Cal. 90.

Surprise as a Ground for a New Trial.

SEC. 4. Mere surprise at the evidence of the witnesses of the defendant is not sufficient. Under such circumstances a nonsuit should have been submitted to before verdict. 7 Cal. 40. Unless a party has been misled by previous statements of a witness of the adverse party as to what he would swear to, his testimony, when given, though it may surprise, is no ground for a new trial. 6 Cal. 228. If testimony be given at a trial which relates to a point not necessarily involved in the decision of the action, even though it be false, unless it had some influence on the judgment, is no ground for a new trial; but if false testimony, given by mistake or otherwise, may have influenced the verdict, particularly if ordinary prudence could not have avoided it, a new trial should be granted. 21 Cal. 397; 3 Cal. 114; 19 Cal. 29; 24 Cal. 237.

SEC. 5. An affidavit of a party that he was surprised at the admission of a witness on the trial because his attorney had advised him that the witness was incompetent, and that he was also surprised by the testimony of the witness in stating a certain conversation incorrectly, is not sufficient to authorize the granting of a new trial on the ground of surprise. 22 Cal. 160.

SEC. 6. Where a party to an action, previous to the trial of the same, is told by a witness that he will testify in a certain manner in relation to a fact material to the issue, and the party to whom the declaration is made, relying on the same, neglects to procure other testimony, and secures the attendance of the witness, and when called to the stand the witness, either by collusion with the party against whom he is called or by reason of any fact or occurrence for which the party calling him is not responsiblę, testifies contrary to what he had previously stated he should dothis is a surprise in the sense in which that word is used in the law of new trials, and a new trial will be granted, provided the party applying for the same shows that he will be

able on the new trial to supply the testimony required. In such case it is not necessary for the party surprised to move for a continuance at the time. 24 Cal. 85.

SEC. 7. Surprise at the ruling of the court, on the trial, as to the admission of testimony, is not ground for a new trial. 10 Cal. 523.

SEC. 8. And where, in such case, plaintiffs were permitted to prove and recover on a title other than the one set up, it was error in the court below to refuse a new trial, the motion for which was based on affidavit of defendant that he was taken by surprise arising out of the frame of the pleadings, and that he could have rebutted plaintiff's case but for this surprise. 16 Cal. 87.

Unpreparedness.

SEC. 9. A party who is unprepared for trial at the time of the calling of the case should move for a continuance; and if he fail to do this, he waives his want of preparation, and cannot afterwards, when judgment has gone against him, move for a new trial on this ground. 11 Cal. 21.

SEC. 10. The parties must come to trial prepared, at their peril; and if either party has any good excuse for not being prepared, he is entitled of right to a postponement of the trial. It has, therefore, been repeatedly held, that the subsequent allegation of a party that he was not prepared, is no reason for granting a new trial, unless it be founded on a discovery of testimony of which the party was not at the time apprised. 11 Cal. 22.

Excessive Damages.

SEC. 11. The power of the court to grant a new trial on the ground of excessive damages is seldom exercised. This results as much from the paucity of cases in which such a complaint is made as from the indisposition of judges to interfere with the measure of damages which results from the deliberation of a jury; but there occasionally occur cases in which even this diffidence on the part of courts of law is totally overcome by the gross inconsistency of the verdict in its relation to the facts. 5 Cal. 411.

SEC. 12. In such case the verdict will not be disturbed, on motion for a new trial, unless the amount is so large as to induce a reasonable person, upon hearing the circumstances, to declare it outrageously excessive or as to suggest, at the first blush, passion or prejudice or corruption, on the part of the jury. Wheaton vs. N. B. and M. R. R. Co., 36 Cal. 590.

Verdict not Sustained by Evidence.

SEC. 13. Where the verdict of the jury is clearly against the evidence, a new trial will be awarded. 8 Cal. 159. On motion for a new trial, on the sole ground that the verdict is not sustained by the evidence, the court below, in passing on the motion, cannot disregard any portion of the evidence before the jury. The question as to the competency of the evidence cannot be raised on such motion. A verdict obtained upon incompetent evidence may be set aside; but this cannot be done if the evidence were admitted without objection, nor can it be done upon the ground that effect was given to the evidence by the jury, even if objected to. In such cases, that which vitiates the verdict is the error of the court in admitting the evidence, and if the party seeking to set aside the verdict be not in position to take advantage of this error, he cannot object that the evidence was improperly admitted. McCloud vs. O'Neall, 16

Cal. 397.

Conflicting Evidence.

SEC. 14. Where the evidence is conflicting a new trial will not be granted. 23 Cal. 219.

SEC. 15. Where the proofs are conflicting it is not error to refuse a new trial. 13 Cal. 58.

SEC. 16. Where the evidence is conflicting the granting or refusing of a new trial rests in the discretion of the court. 10 Cal. 301. If the finding of the court is contrary to the weight of evidence, yet if there is some evidence that sustains the finding, the judgment will not be disturbed by the appellate court. Lick vs. Madden, 36 Cal. 208.

SEC. 17.

Newly-discovered Evidence.

Newly-discovered evidence, which is merely cumulative, affords no ground for a new trial. 23 Cal. 419.