cases formerly cognizable in courts of equity,1 and as to this class, the enactment of the code allowing jury trials in all cases, may be modified or repealed at any time; and it is only as to this class of cases that such legislation would be necessary. And it is submitted, that in addition to the right to refer any or all the issues by consent of parties, the court should have power also to refer, upon application of either party, or upon its own motion, those issues involving partnership transactions, matters of account, or any other matter of complication, arising in cases formerly cognizable in courts of equity to a referee or master. There should never be more than one referee, and seldom is in practice. The E. ctc. R. Co. v. Miller, 30 Ind. 209; L. E. R. Co. v. Heath, 9 id. 558; Dunberry v. Reed, 11 id. 420. VOL. I.-15 CHAPTER IX. OF THE PROCEEDINGS WHICH MAY INTERVENE BETWEEN THE TRIAL AND FINAL JUDGMENT. MOTION FOR A NEW TRIAL. § 1. Of the motion for a new trial. 2. The motion for a new trial taken from the common law. 3. Motion for a new trial must be upon written causes. 4. Causes for a new trial enumerated. 5. New trial, when applied for. 6. Requirements of the code unknown to the common law. 7. Plan of the consideration of causes for a new trial. 8. The first specification examined. 9. Irregularity of the jury or prevailing party. 10. Irregularity or misconduct of the jury. 11. Evidence of misconduct impeaching a verdict. 12. Motion for misconduct must be supported by affidavit. 13. Irregularity or misconduct of prevailing party. 14. Misconduct of attorney attributed to client represented. 15. Misconduct of counsel in argument not objected nor excepted to, cannot constitute grounds for a new trial. 16. Accident or surprise, against which ordinary prudence could not have guarded. 17. Cases under this head hard to classify-much in the discretion of the court trying the cause. 18. Surprise as to testimony. 19. Surprise at the evidence of the adverse party. 20. Surprise arising out of act or omission of attorney. 21. The rules as to surprise less liberal toward plaintiff than the defendant. 22. Error in the assessment of damages. 23. Rule in actions founded in contract. 24. Rule in actions upon contract further discussed. 25. Rule in action founded in tort; difference. 26. Further discussion of the difference of the rule in contract and tort; error on this subject if not assigned, waived. 27. Sixth cause; verdict is not sustained by sufficient evidence, or is contrary to law. 28. Duties of the court and jury, respectively. 29. The duties of the judge at the trial. 30. Duties of the judge, continued - the rule of his duties stated. 31. Duty of the judge, continued. 32. The difficulty of defining the duties of the judge in determining the sufficiency of the evidence. 33. A proximate definition of the duties of the judge in a trial by jury. 34. The verdict is contrary to law-second clause, sixth specification of causes. $35. Second clause of sixth specification embraced in the first under the rulings. 36. Where the verdict is imperfect or informal, and it appears on the face of the record. 37. Rule the same under sixth specification whether case tried by court or jury. 38. Newly discovered evidence. 39. Failure to use diligence defeats the motion. 40. Newly discovered cumulative evidence no cause for new trial. 41. A case stated and questioned. 42. Error of law occurring at the trial. 43. Error in rulings, what. 44. Error in instructions, what. 45. Summary of the scope of "error of law.” 46. Strictness required in reserving errors and assigning them for a new trial. 47. The strictness and particularity further pointed out. 48. Errors as to matters not appearing in the record must be reserved by bill of exceptions and assigned as causes for a new trial, if relied on. 49. Difference between common law and the code in this respect. 50. Rule of the common law further stated. 51. Excessive nicety criticised and deprecated. 52. The effect of excessive technical nicety further considered. 53. Suggestion of mode of obviating necessity for such nicety. 54. The subject of the last five sections continued, and results stated. 55. Motion for a new trial, in certain cases, must be supported by affidavits. 56. No motion for new trial, in agreed cases, necessary. 57. A joint motion for a new trial treated as several. 58. Causes rarely reversed for granting a new trial. 59. But one motion for a new trial for the same cause. 60. Motion may be either before or after judgment, and, in certain cases, after term of trial. 61. For what causes new trial may be granted after term of trial. 62. Complaint for new trial-what it must contain. 63. Applications, how made and tried, and judgment therein. 64. No motion necessary in agreed cases. 65. Qualifications of the right to grant new trials. 66. Second exception to or limitation upon the right to grant a new trial— smallness of damages. 67. Second subdivision of the third exception. 69. New trials without cause. 70. Origin of new trial of course in suits to try titles. 71. Abolition of action of ejectment and substitution of action for possession. 72. Judicial construction of the section allowing a new trial of course in land cases. 73. Notice, how given, after new trial is granted of course in land cases. 74. Effect of new trial on interest of third parties. ARREST OF JUDGMENT. 75. Arrest of judgment, when made. 76. Arrest of judgment at the common law. 77. Motion in arrest, how examined and disposed of, and the effect thereof. $ 78. Motion non obstante veredicto, how related to motion in arrest. MOTION FOR VENIRE DE NOVO. 81. Of the motion for a venire de novo. 82. When verdict not responsive to issues, or vague and uncertain, jury may be sent back, but if not, motion will lie. 83. Illustrations of cases referred to in the last section. 84. Case tried by court by consent, instead of jury, governed by the same rules. 85. Of judgment non obstante veredicto. 86. Of the motion in arrest of judgment under the code. 87. How far a bad pleading, not objected to by demurrer, will be cured by a verdict, so as to defeat a motion for judgment non obstante, or in arrest. §1. Of the motion for a new trial. The motion for a new trial is the first which will be considered in order, after the verdict or finding of the court, and relates to matters which do not appear upon the face of the record. But, although the first considered does not always occur first in the order of proceedings considered in this chapter, it is one of the most important and complicated branches of the practice. §2. The motion for a new trial taken from the common law. The rules of practice under the code are, in the main, derived from the modern common law practice, and substantially conform to it, with a few modifications, which, with the rulings thereon, render the practice upon this point under the code somewhat more technical than it was at the common law. 83. Motion for a new trial must be upon written causes. Under the code of procedure, an application for a new trial must be made by motion, upon written causes, filed at the time. Although these causes are required to be in writing, yet, if there be any fact assigned as a cause which does not appear upon the record, it must be made so to appear by bill of exceptions, or the cause cannot be made available.1 §4. Causes for a new trial enumerated. The following is the enumeration of the causes which may be successfully assigned: 1. Irregularity of the jury or prevailing party in the proceedings of the court, jury, or prevailing party, or any order of the court, or abuse of discretion by which the party was prevented from having a fair trial. 2. Misconduct of the jury or prevailing party. 3. Accident or surprise, against which ordinary prudence could not 1 Hopkins v. Turnpike Co. 46 Ind. 187. have guarded. 4. Excessive damages. 5. Error in the assessment of the amount of recovery, whether the same be too large or too small, where the action is upon contract, or for the injury or detention of property. 6. That the verdict or decision is not sustained by sufficient evidence, or is contrary to law. 7. Newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial. 8. Error of law occurring at the trial, and excepted to at the time.1 The second, third and seventh causes must be supported by affidavit.2 5. New trial, when applied for. A new trial may be applied for, either before or after judgment, but must be made before the close of the term at which the trial is had. But where the cause is discovered after the term, the application must be made within a year, not later than the second term after the discovery, in the manner hereafter pointed out.1 §6. Requirements of the code, unknown to the common law. Several qualifications are introduced by the code, which were before unknown; and about the wisdom of some of which, there is much question: 1. It is provided, that in granting new trials, the court may do so at the costs of the party applying, or may apportion the costs, or the costs may abide the final determination. 2. It is provided, that a new trial shall not be granted on account of the smallness of the damages, in actions for an injury to the person or reputation; nor in any other action where the damages shall equal the actual pecuniary damages sustained. 3. No more than two new trials can be granted to the same party in the same cause. 7. Plan of the consideration of causes for a new trial. The several causes will now be examined and construed, so far as the course of adjudged cases furnishes any light; for that purpose, and after the several causes are discussed, some attention will be given to the exceptions or limitations already mentioned. A member of the late supreme bench, by implication, depreciates the legal sagacity of the bar, because they constantly make mistakes |