Reference by agreement.

Court may order a refer

ence.

CHAPTER VIII.-Of References and Trials by Referees.

SEC. 273. A reference may be ordered upon the agreement of the parties, filed with the clerk or entered on the minutes

First. To try any or all of the issues in an action or proceeding, whether of fact or of law, and to report a finding and judgment thereon.

Second. To ascertain a fact necessary to enable the court to proceed and determine a case.

SEC. 274. When the parties do not consent the court may, upon application of either, or of its own motion, direct a reference in the following cases:

First. When the trial of an issue of facts requires 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 report upon any specific question of fact involved therein.

Second. When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect.

Third. When a question of fast other than upon the pleadings arises, upon motion or otherwise, in any stage of the action.

Fourth. When it is necessary for the information of the court in a special proceeding.

SEC. 275. 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 shall appoint one or more referees, not exceeding three, who reside in the county where the action or proceeding Reference, to is triable, and against whom there is no legal objection, or the reference may be made to a court commissioner of the county where the cause is pending. Every referee, before acting as such, shall take and subscribe an oath (or affirmation), before some authorized officer, which shall be filed with the clerk of the court by which he is appointed, that he will honestly, impartially, and faith

whom or

dered.

fully perform the duties of referee in the action or matter referred to him, as required by law, to the best of his knowledge and ability.

SEC. 276. Either party may object to the appointment of any person as referee on one or more of the following grounds:

First. A want of any of the qualifications prescribed by statute to render a person competent as a juror.

Second. Consanguinity or affinity within the third degree to either party.

Third. Standing in the relation of guardian and ward, master and servant, employee and clerk, or principal and agent, to either party, or being a member of the family of either party, or a partner in business with objections to either party, or being security on any bond or obligation for either party.

Fourth. Having served as a juror or been a witness on any trial between the same parties for the same cause of action.

Fifth. Interest on the part of such person in the. event of the action, or in the main question involved in the action.

Sixth. Having formed or expressed an unqualified opinion or belief as to the merits of the action.

Seventh. The existence of a state of mind in such person evincing enmity against or bias to either party.

SEC. 277. The objection taken to the appointment

referee.

Hearing ob

of any person as referee shall be heard and disposed of jections to by the court. Affidavits may be read and any person

examined as a witness as to such objections.

SEC. 278. The referees or commissioner shall report their findings in writing to the court within ten days (or within such further time as may be allowed by the court)

referee.

erees.

after the testimony shall have been closed and the facts Report of reffound, and the conclusions of law shall be separately stated therein. The finding of the referees or commissioner upon the whole issue shall stand as the finding of the court, and upon filing of the finding with the clerk

Exceptionswhat are.

What deem

have

been except

ed to ed to.

Points of ex

of the court judgment may be entered thereon in the same manner as if the action had been tried by the court. The finding of the referees or commissioner may be excepted to and reviewed in like manner as if made by the court. When the reference is to report the facts, the finding reported shall have the effect of a special verdict.

SEC. 279.

An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be by jury, court, or referees, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge of a jury, or at any other time, from the calling of the action for trial to the rendering of the verdict or decision; but no exceptions shall be regarded on a motion for a new trial or an appeal, unless the exception be material and effect the substantial rights of the parties.

SEC. 280. The verdict of the jury, the final decision in an action or proceeding, an interlocutory order, or decision finally determining the rights of the parties, or some of them; an order or decision of which an appeal may be taken; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance; an order made upon ex parte application, and an order or decision made in absence of a party—are deemed to have been excepted to.

SEC. 281. The point of the exception shall be particularly stated, except as provided in relation to instructions, and may be delivered in writing to the judge, or, if the party require it, it shall be written down by the ceptions to be clerk. When delivered in writing or written down by the clerk it shall be made conformable to the truth or be at the time corrected until it is made so conformable. When not delivered in writing, or written down as above, it may be entered in the judge's minutes, and

stated.

:

afterwards settled in a statement of the case as provided in this act Provided, That if the judge shall in any case refuse to allow an exception in accordance with the facts, any party aggrieved thereby may petition the supreme court for leave to prove the same, and shall have the right to do so in such mode and manner, and according to such regulations, as the supreme court may by rules prescribe.

Form of ex

SEC. 282. No particular form of exception shall be required. The objection shall be stated with so much of ceptions. the evidence or other matter as is necessary to explain it, but no more, and the whole as briefly as possible.

SEC. 283. When a cause has been tried by the court or by the 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 motion for a new trial, or on appeal, without any special notice that an exception is taken thereto.

CHAPTER X.-New Trials.

When excep taken on mo

tions deemed

tion for new

trial.

New

SEC. 284. A new trial is a re-examination of an issue of fact in the same court after a trial and decision what is. by a jury, court, or referees.

SEC. 285. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes materially affecting the substantial rights of said 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; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict, or to a finding on any question or questions submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavits of any one or more of the jurors.

trial

Causes for new trial.

Motion for new trialhow made.

Notice

that

must be given

and time in

which party

must move

for new trial.

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

Fourth. Newly discovered evidence, material for the party making the application.

SEC. 286. When the application is made for a cause mentioned in the first, second, third, and fourth subdivisions of the last section, it must be made upon affidavits; for any other cause it may be made at the option of the moving party, either upon the minutes of the court, or a bill of exceptions, or a statement of the case prepared as hereinafter provided.

SEC. 287. The party intending to move for a new trial must, within ten days after the verdict of the jury, if the action was tried by a jury, or after notice of the decision of the court or referee, if the action was tried without a jury, file with the clerk and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits or the minutes of the court, or a bill of exceptions, or a statement of the case.

First. If the motion is to be made upon affidavits, the moving party must, within ten days after serving the notice, or such further time as the court in which the Motion upon action is pending or a judge thereof may allow, file such affidavits with the clerk and serve a copy upon the adverse party, who shall have ten days to file counter affidavits, a copy of which must be served upon the moving party.

affidavits.

Second. If the motion is to be made upon a bill of exceptions and no bill has already been settled as hereinbefore provided, the moving party shall have the same time after service of the notice to prepare and obtain a Motion upon settlement of a bill of exceptions as is provided after the entry of judgment, or after receiving notice of such entry provided by section 281, and the bill shall be prepared and settled in a similar manner. If a bill of exceptions has been already settled and filed when the

bill of excep

tions.