ing, and it does not appear from the record and statement of case on appeal, whether the witness signed the examination or not, it will be presumed on appeal that the witness did sign, and that the magistrate complied with the duties imposed upon him by the statute. State v. Wilkerson, 103-337.

See 398 and 409, ante.

(3) If there shall be error, either in the refusal of the judge to grant a prayer for instructions, or in granting a prayer, or in his instructions generally, the same shall be deemed excepted to without the filing of any formal objections.

Exception to charge cannot be made for first time in the supreme court.-Exception to the charge, unlike all other matters on the trial, need not be taken "at the time. By virtue of this section the charge is deemed excepted to. None the less the exceptions must be set out by appellant in his case on appeal, or the exception is waived. Exceptions to the charge cannot be made for the first time in the supreme court. non v. Morrison, 104-354; Fry v. Currie, 91-436; Lytle v. Lytle, 94-552; Ware v. Nesbit, 94-664; Pleasants v. Railroad, 95-195; Scott v. Railroad, 96-428; Pollok v. Warwick, 104-638; Whitehurst v. Pettipher, 10540; McMillan v. Gambill, 106-359.

McKin

NOTE.-Prior to the adoption of the section as it now stands, the exception to the instructions of the judge must have been taken at the trial and noted. Williamson v. Canal Co., 78-156; Stout v. Woody, 63-37; White v. Clark, 82-6; Morgan v. Smith, 77-37; Harrison v. Chappel, 84-258.

Contra.-Although no exception be taken to the charge at the time, yet if there be error in the instructions given, the party may assign it. Bynum v. Bynum, 33-632; State v. Austin, 79-624; Burton v. Railroad, 82-504; Burton v. Railroad, 84-192; Ring v. King, 20-164; Grist v. Backhouse, 20-164.

It is now, however, well settled" by above decisions that an objection to judge's charge is not required to be taken on the trial, but cannot be taken for the first time in the supreme court. It is sufficient if set out in the appellant's case on appeal, but the practice commended by the court (though not held obligatory) is to assign errors to the charge in a motion for a new trial under subsection 4 of this section.

Omission to charge.-An omission to charge on a particular aspect of the case is not error, unless an instruction was asked and refused. Simpson v. Blount, 14-34; Brown v. Morris, 20-429; State v. O'Neal, 29–251; Arey v. Stephenson, 34-34; Hice v. Woodward, 34-293; State v. Caveness, 78-484; State v. Hardee, 83-619; State v. Nicholson, 85-548; Moore v. Parker, 91-275; Fry v. Currie, 91-436; Terry v. Railroad, 91-236; Davis v. Council, 92-725; Branton v. O'Briant, 93-99; Morgan v. Lewis, 95-296; King v. Blackwell, 96-322; Wiley v. Railroad, 96-408; State v. Debnam, 98-712; State v. Bailey, 100-528; Taylor v. Plummer, 105-56; Thompson v. Telegraph Co., 107-449; McFarland v. Southern Improvement Co., 107-368; State v. Fleming, 107-905; Boon v. Murphy, 108-187. Exception to charge must be specific.-An unpointed broadside challenge "to the charge as given" will be disregarded. McKinnon v. Morrison, 104-354; Lytle v. Lytle, 94-522; Bost v. Bost, 87-477; Fry v. Currie,

91-436; State v. Eliason, 91-564; McDonald v. Carson, 94-497; Williams v. Johnston, 94-633; Pleasants v. Railroad, 95-195; Clements v. Rogers, 95-248; State v. Nipper, 95-653; Wiley v. Railroad, 96-408; Barber v, Roseboro, 97-192; Boggan v. Horne, 97-268; Sellars v. Sellars, 98-13; Caudle v. Fallen, 98-411; Newby v. Harrell, 99-149; Leak v. Covington, 99-559; Dugger v. McKesson, 100-1; Hammond v. Schiff, 100-161; Carlton v. Railroad, 104-365; Helms v. Green, 105-251; Taylor v. Navigation Co., 105-484; State v. Parker, 106-711; Thompson v. Telegraph Co., 107-449; State v. McDuffie, 107-885; Everett v. Williamson, 107-204; State v. Brabham, 108–793.

Where a party excepts to a charge of the judge, that there was no evidence of fraud, the exception should point out the evidence in which it is claimed that fraud appears. Otherwise the appellate court may disregard it. Giles v. Hunter, 103-194.

Exceptions to charge may be made for first time in appellant's case on appeal,— Exceptions to the charge, and for refusing to give special instructions, are in time if taken at or before the stating of the case on appeal, though the better practice is to assign all exceptions in making motion for new trial. Lowe v. Elliott, 107-718.

Error in the charge to the jury may be assigned for first time in appellant's statement of case on appeal, Pollok v. Warwick, 104-638; Walker v. Scott, 106-56; McKinnon v. Morrison, 104-354; Boon v. Murphy, 108-187; Taylor v. Plummer, 105-56; Smith v. Smith, 108-365.

Error favorable to appellant.-An error in the judge's charge, which is not unfavorable to the party complaining is not ground for a new trial. Cowles v. Hall, 90-330.

See 22413 and 550, post, and cases cited; also, Battle's Digest, vol. 2, pp. 1008-1017.

(4) The judge who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside. a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion can only be heard at the same term at which the trial is had. When such motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had.

Modification of verdict.-The court can set aside, but cannot amend or modify, a verdict. Shields v. Lawrence, 82-516.

Partial new trial.-A new trial on one or more issues can be granted, where the issue found incorrectly, or the erroneous ruling as to evidence or erroneous charge plainly affected such issue only, but in all other cases the new trial, if granted, must be on all the issues. Meroney v. McIntyre, 82-103; Burton v. Railroad, 84-192.

Where the error is only as to the issue as to damages, a new trial may be awarded thereon, leaving the verdict and judgment undisturbed in other respects. Crawford v. Mfg. Co., 88-554; Roberts v. Railroad, 88-560; Lindsay v. Railroad, 88-547; Geer v. Reams, 88-197; Boing v. Railroad, 91-199.

Where the error affected the verdict for the recovery of a tract of land, but only as to a part of the land, the issue not being divisible, a partial new trial cannot be granted. Beam v. Jennings, 96-82.

Motion must be made and heard at same term. The judge must hear a motion for a new trial, for the causes mentioned in this section, at the term the case is tried, and has no power to continue it to another term. England v. Duckworth, 75-309.

This section was not intended as a statement of all the grounds of a new trial, but as additional to the grounds mentioned in 274, and also to prescribe that, in the cases mentioned here, the motion must be made at the term when the trial is had. Quincy v. Perkins, 76-295; Puffer v. Lucas, 107-322.

In judgments founded upon verdicts, the relief should be by motion for a new trial, made at the term when rendered, and, being addressed to the discretion of the trial judge, his ruling thereon is conclusive, unless it is based on a want of power, in which event it is reviewable on appeal. Moore v. Hinnant, 90-163; Beck v. Bellamy, 93-129; Clemmons v. Field, 99-400.

New trial properly granted. It is not error to grant a new trial where the issues submitted to the jury were confused. Tankard v. Tankard, 79-54.

A new trial is properly granted where the findings of the jury are irreconcilable. Bank v. Alexander, 84-30; Mitchell v. Brown, 88–156.

New trial properly refused. It is error to grant a new trial on the ground that damages are excessive, when the evidence showed the actual amount of damage and the verdict was in accordance therewith. Winburne v. Bryan, 73-47.

New trial discretionary.-Where the circumstances are such as merely put a suspicion on the verdict by showing, not that there was, but that there might have been, undue influence brought to bear upon the jury because of the opportunity for it: Held, that the granting a new trial is discretionary with the presiding judge. State v. Brittain, 89-481; State v. Gould, 90-658; State v. Harper, 101-761. See 409, ante.

An application for a new trial, except for error of law in the conduct of the trial, is addressed solely to the discretion of the presiding judge, whose decision is not appealable. Carson v. Dellinger, 90-226.

The granting of a new trial for excessive damages is exclusively in the discretion of the court below, and not reviewable. Goodson v. Mullen, 92-211.

Where a new trial was asked on the ground that one of the jurors. who sat on the trial of the case, became insane very shortly after the verdict was rendered, and so might be supposed to have been insane while acting as a juror, the matter is entirely in the discretion of the trial judge, in the absence of any finding of fact that the juror was insane while on the jury. State v. Rogers, 94-860.

Where the motion for a new trial is addressed to the discretion of the trial judge, his action is not the subject of review on appeal. Jones v. Parker, 97-33

The proceedings of a court are in fieri until the close of the term, and the judge may, in the exercise of his discretion, without notice and without stating the facts upon which he bases his action, at any time during the term, vacate, modify or reverse anything done therein; and the exercise of such power is not reviewable, unless, perhaps, it should be made to appear it had been grossly abused, and resulted in oppression. Allison v. Whittier, 101-490.

It is competent for the trial court, in its discretion, to grant a new trial if it has reason to believe injustice has been done, but from its refusal to do so, there is no appeal. State v. Braddy, 104-737.

Where there is some evidence, it is entirely within the discretion of the trial judge to say whether he will allow the verdict to stand. Owens v. Phelps, 95-286.

It cannot be assigned as error, on appeal, that the jury did not give due consideration to the evidence, considered in one aspect of the case. This is addressed to the discretion of the trial judge on an application to set aside the verdict. Spence v. Clapp, 95-545.

Verdict against the weight of evidence.-Granting a new trial on the ground that the verdict is against the weight of the evidence, is a matter within the discretion of the judge below, and not reviewable, unless it appear that the judge was influenced in the exercise of such power by an erroneous view of the law. Davenport v. Terrell, 103-53.

The refusal of the court below to set aside a verdict on the ground that it was against the weight of the evidence cannot be reviewed on appeal. Whitehurst v. Pettipher, 105-40; Ferrall v. Thompson, 107–420. It is in the discretion of the court below to refuse, or to grant a new trial, because the verdict was against the evidence as when it was against the weight of the evidence, and no appeal lies from its exercise. Redmond v. Stepp, 100-212.

Objection to judgment.-Ordinarily a judgment is conclusive as to all matters entering therein, and objection thereto should be taken at the time the judgment is rendered. Dickerson v. Wilcoxon, 97–309.

After verdict. Where the defendant pleads sole seizin, he cannot, after a verdict in favor of plaintiff, avail himself of a defence which would be in harmony with the verdict. Allen v. Sallinger, 103-14.

On appeal.-Under the practice in this state, where the record shows a motion for a new trial for certain alleged errors, only such errors will be considered in the supreme court, all other exceptions taken at the trial being treated as abandoned. Leak v. Covington, 99-559.

Where an appeal is taken from an order, granting or refusing a new trial, the facts and considerations which induced the trial judge to grant or refuse a new trial, should be stated on the record, in order that the appellate court may see whether the judgment is subject to review. Braid v. Lukins, 95-123.

New trial for newly discovered testimony.-The rules in relation to applications for new trials for newly discovered evidence and the principles on which they are founded, discussed by Pearson, C. J. Bledsoe v. Nixon, 69-81.

Granting a new trial because of newly discovered evidence must necessarily always, or nearly always, be within the discretion of the presiding judge, and his decision can very rarely in such cases be on a naked matter of law or legal inference so as to authorize an appeal. Holmes v. Godwin, 69-467.

In an affidavit in support of a motion for a new trial' for newly discovered evidence, in ascertaining the whereabouts of a witness since the trial, it is not sufficient in accounting for its being previously unknown to state that "every means had been used to find out where the witness was." The applicant should state what means he did use and let the court judge. Shehah v. Malone, 72-59.

A motion for a new trial for newly discovered testimony, should only be granted if the testimony discovered since the trial is probably true

and would have produced a different result if known, and when it could not have been then discovered by reasonable diligence and such reasonable diligence was in fact used. Henry v. Smith, 78-27; Dupree v. Insurance Co., 93-237.

The granting of a new trial for newly discovered evidence and for matter occurring since the trial where the application is made to the supreme court, is a matter of sound discretion depending upon the circumstances of each case. Carson v. Dellinger, 90-226.

A new trial will not be granted for newly discovered evidence, when the new evidence is merely cumulative, and only tends to contradict the witness for the other side. State v. Starnes, 97-423.

When new evidence is discovered during the term, a motion for a new trial on account of it must be made to the court which tried the case, and if denied, it will not be heard in the supreme court. Ferrall v. Thompson, 107-420; Redmond v. Stepp, 100-212; Carson v. Dellinger, 90-226; Munden v. Casey, 93-97.

Where the newly discovered evidence tends only to contradict a witness on the other side, a new trial will not be granted. Brown v. Mitchell, 102-347.

Motion for new trial pending an appeal.—If an application for a new trial for newly discovered evidence is made during an appeal pending in the supreme court, upon a proper case that court will remand the case that the superior court may take proper action. If the newly discovered evidence applies to only part of the judgment, the supreme court will retain the cause and send down proper issues to be tried. Pending the appeal, the motion cannot be made in the superior court. Bledsoe v. Nixon, 69-81; Shehan v. Malone, 72-59; Henry v. Smith, 78-27.

In justice's court.-A new trial cannot be allowed in a justice's court. The party dissatisfied has his remedy only by appeal (The Code, ? 865.) but where the judgment is rendered in the absence of either party and such absence is occasioned by any of the causes specified in 845, relief may be had within ten days after judgment by filing an affidavit setting forth the grounds therefor before the justice. Gambill v. Gambill, 89-201.

Sec. 413. Judge to explain law, but to express no opinion on facts. C. C. P., s. 237. R. C., c. 31, s. 130. 1796, c. 452, s. 1.

No judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon.

What is an expression of opinion. It is error for the judge to charge the jury that they must find for one of the parties, unless they believe his witness had committed perjury. State v. Thomas, 29-381.

It is a clear violation of the prohibition against the judge expressing an opinion as to the facts, for a judge to tell the jury that a book of science, read by counsel, was entitled to as much authority as a witness who had been examined as an expert. Melvin v. Easley, 46-386.