Who may be referee.

Grounds of objec

tion to referee.

Objections to referee, how disposed of.

Referee's report.

4th. When it is necessary for the information of the court in a special proceeding.

SEC. 184. 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 in which the action or proceeding is triable, and against whom there is no legal objection.

SEC. 185. Either party may object to the appointment of any person as referee, on one or more of the following grounds:

1st. A want of any of the qualifications prescribed by statute to render a person competent as a juror:

2d. Consanguinity or affinity, within the third degree, to either party :

3d. Standing in the relation of guardian and ward, master and servant, employer 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 either party; or being security on any bond or obligation for either party :

4th. Having served as a juror, or been a witness on any trial between the same parties for the same cause of action:

5th. Interest on the part of such person in the event of the action, or in the main question involved in the action:

6th. Having formed or expressed an unqualified opinion or belief as to the merits of the action:

7th. The existence of a state of mind in such person evincing enmity against or bias to either party.

SEC. 186. The objections taken to the appointment of any person as referee shall be heard and disposed of by the court. Affidavits may be read, and any person examined as a witness, as to such objections.

SEC. 187. The referees shall make their report within ten days after the testimony before them is closed. Their report upon the whole issue shall stand as the decision of the court, and upon filing the report with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court. The decision of the referees may be excepted to and reviewed in like manner as if made by the court. When the reference is to report the facts, the report shall have the effect of a special verdict.

CHAPTER VII.

GENERAL PROVISIONS RELATING TO TRIALS.

ARTICLE I.

EXCEPTIONS.

defined.

SECTION 188. An exception is an objection taken at the trial to a de- Exception cision 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 to 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 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.

exception

SEC. 189. The point of the exception shall be particularly stated, Point of and may be delivered in writing to the judge, or if the party require to be stated. it, shall be written down by the 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 so made conformable. When not delivered in writing, or written down as above, it may be entered in the judge's minutes and afterwards settled in a statement of the case, as provided in this act.

exception.

SEC. 190. No particular form of exception shall be required. The Form of objection shall be stated, with so much of the evidence, or other matter, as is necessary to explain it, but no more; and the whole as briefly as possible.

or report deemed

SEC. 191. When a cause has been tried by the court, or by re- When decision ferees, and the decision or report is not made immediately after the excepted. 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.

ARTICLE II.

NEW TRIALS.

defined.

SECTION 192. A new trial is a re-examination of an issue of fact New trial in the same court, after a trial and decision by a jury, court, or referees.

granting a new

SEC. 193. The former verdict or other decision may be vacated and Grounds for a new trial granted, on the application of the party aggrieved, for trial. any of the following causes materially affecting the substantial rights of such party:

When motion must be supported by affidavit.

Notice of motion for new trial.

Motion, when to be made.

When judgment

may be entered.

1st. 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:

2d. Misconduct of the jury:

3d. Accident, or surprise, which ordinary prudence could not have guarded against:

4th. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial:

5th. Excessive damages, appearing to have been given under the influence of passion or prejudice:

6th. Insufficiency of the evidence to justify the verdict, or other decision; or that it is against law:

7th. Error in law, occurring at the trial, and excepted to by the party making the application.

SEC. 194. 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. 195. The party intending to move for a new trial 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 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 to the minutes of the court. If the application be made upon 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. 196. The application for a new trial shall be made at the earliest period practicable after filing the affidavit or statement.

CHAPTER VIII.

THE MANNER OF GIVING AND ENTERING JUDGMENT.

SECTION 197. When trial by jury has been had, judgment shall be entered by the clerk, in conformity to the verdict, within twenty-four

hours after the rendition of the verdict, unless the court order the case to be reserved for argument, or further consideration, or grant

a stay of proceedings.

case reserved.

SEC. 198. When the case is reserved for argument, or further con- Argument of sideration, as mentioned in the last section, it may be brought by either party before the court for argument at the first special term.

defendant.

action to recover

SEC. 199. If a counter claim, established at the trial, exceed the Judgment for plaintiff's demand, so established, judgment for the defendant shall be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment shall be given accordingly. SEC. 200. In an action to recover the possession of personal pro- Judgment in perty, judgment for the plaintiff may be for the possession, or the value specific personal thereof, in case a delivery cannot be had, and damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.

property.

SEC. 201. The clerk shall keep among the records of the court, a Clerk to keep a judgment book. book for the entry of judgments, to be called the "Judgment Book,' in which each judgment shall be entered, and shall specify clearly the relief granted, or other determination of the action.

after verdict and

SEC. 202. If a party die after a verdict of decision upon any issue Death of party of fact, and before judgment, the court may nevertheless render judg- before judgment. ment thereon. Such judgment shall not be a lien on the real property

of the deceased party, but shall be payable in the course of adminis

tration on his estate.

how constituted.

SEC. 203. Immediately after entering the judgment, the clerk shall Judgment roll, attach together and file the following papers, which shall constitute the judgment roll:

1st. In case the complaint be not answered by any defendant, the summons with the affidavit or proof of service, and the complaint, with a memorandum endorsed on the complaint, that the default of the defendant in not answering was entered, and a copy of the judg

ment:

2d. In all other cases, the summons, pleadings, and a copy of the judgment, and any orders relating to a change of the parties.

docketed and to

SEC. 204. Immediately after filing a judgment roll the clerk shall Judgment to be make the proper entries of the judgment, under appropriate heads, in become a lien. the docket kept by him; and from the time the judgment is docketed, it shall become a lien upon all the real property of the judgment debtor, not exempt from execution in the county owned by him at the time, or which he may afterwards acquire, until the said lien expires.

Docket described.

Docket to be open for inspection.

Transcript of docket may be filed.

Entry of satisfaction.

Execution within five years.

The lien shall continue for two years, unless the judgment be previously satisfied.

SEC. 205. The docket mentioned in the last section is a book which the clerk shall keep in his office, with each page divided into eight columns, and headed as follows: Judgment Debtors; Judgment Creditors; Judgment; Time of Entry; Where entered in Judgment Book; Appeals, when taken; Judgment of Appellate Court; Satisfaction of Judgment, when entered. If judgment be for the recovery of money or damages, the amount shall be stated in the docket under the head of judgment; if the judgment be for any other relief, a me morandum of the general character of the relief granted shall be stated. The names of the defendants shall be entered in the docket in alphabetical order.

SEC. 206. The docket kept by the clerk shall be open at all times during office hours for the inspection of the public, without charge; and it shall be the duty of the clerk to arrange the several dockets kept by him in such a manner as to facilitate their inspection.

SEC. 207. A transcript of the orignal docket certified by the clerk may be filed with the recorder of any other county, and from the time of the filing the judgment shall become a lien upon all the real property of the judgment debtor not exempt from execution in such county owned by him at the time, or which he may afterwards acquire, until the said lien expires. The lien shall continue for two years, unless the judgment be previously satisfied.

SEC. 208. Satisfaction of a judgment may be entered in the clerk's docket upon an execution returned satisfied, or upon an acknowledgment of satisfaction filed with the clerk, made in the manner of an acknowledgment of a conveyance of real property, by the judgment creditor; or within one year after the judgment by the attorney, unless a revocation of his authority be previously filed. Whenever a judgment shall be satisfied in fact, otherwise than upon an execution, it shall be the duty of the party, or attorney, to give such acknowledgment, and upon motion the court may compel it, or may order the entry of satisfaction to be made without it.

TITLE VII.

OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS.

CHAPTER I.

THE EXECUTION.

SECTION 209. The party in whose favor judgment is given, may, at any time within five years after the entry thereof, issue a writ of execution for its enforcement, as prescribed in this chapter.