jury; this, however, not having been done the court was powerless to frame a single verdict on all the issues on which to render judgment (see § 564); Baughan v. Baughan, 114-75.

551. Special finding by court. A finding of the court, on the trial or hearing of a cause, no matter how full or extended it may be, will always be regarded in the supreme court as a general finding, unless it be shown, by the record, that the finding was made in writing, at the request of one or both of the parties and signed by the trial judge; Conner v. Marion, 112-519.

A special finding made by a court without a request of one of the parties will be treated, in the supreme court, as a general finding, only; Weaver v. Shipley, 127-534. A finding which is not, in the technical sense of the Code, a special finding, will not be disregarded because it specifically states the facts found and is not in general terms a finding for the plaintiff or defendant. All findings which are not technically special findings are regarded and treated as general findings; so, where the facts are stated, an erroneous modification of the finding, on the motion of a party, is harmless; Levy v. Chittenden, 120-41.

Where a court, sua sponte, called a jury, to which it submitted questions of fact for the information of court, and, on the return of the answers to questions submitted to such jury, the court prepared what purported to be a special finding of the facts proven, the case and its conclusions of law thereon, and it did not appear that the court made such special findings at the request of any of the parties to the proceeding, the supreme court is not at liberty to treat it as a special finding, but must treat the case as one in which the court entered a general finding; Sheets v. Bray, 125-35.

It is the province of a special finding to state the facts proven on the trial. Where a party to the suit prays the court to find certain facts in addition to those stated in the special finding and that prayer is denied, on an exception reserved, in the absence of the evidence from the record the supreme court is unable to determine whether there was any evidence before the court tending to prove these additional facts or not. In support of the legal presumption that every thing is rightly done in court, the court must presume that there was no evidence of the additional facts which the court was requested to find; Hays v. Hostetter, 125-65.

A special finding must find the facts and state neither conclusions of law nor mere matters of evidence. The ultimate facts must be stated not the evidence by which they are established; Perkins v. Hayward, 124-450.

If evidence be intermingled in a finding of facts and sufficient facts be found to support the conclusion of law, the fact that the court has intermingled with the finding of facts statements or items of evidence will not vitiate the finding. If, by eliminating from the finding the items of evidence, there be sufficient facts found to support the conclusions of law, and the proper conclusion of law is stated from the facts found, there is no error in the conclusion of law and the case will not be reversed; Whitcomb v. Smith, 123-333; see Bartholomew v. Pierson, 112-430.

Where the facts found in a special finding, after eliminating the evidence set forth, are wholly insufficient to support any judgment, the supreme court will order a new trial, to the end that justice may be done, albeit the motion for a venire de novo is informal; Roberts v. Lindley, 121-58.

(a) If, in a special finding, items of evidence only are stated -- instead of the facts, which should be found and if the statement of the legal conclusions embraces matters of law and, also, matters of fact which should have been found as such, a venire de novo should be granted (Kealing v. Vansickle, 74-529). (b) A special finding of facts can neither be aided nor enlarged by the conclusions of law stated by the court (Jarvis v. Banta, 83-528). (c) It follows that where the finding in respect to a question of payment, which is a question of fact, is of evidential facts, and the ultimate fact is not stated in the special finding of facts, but is stated only as a conclusion of law, the finding can not be aided by the conclusion of law and the judgment thereon based must be reversed that a new trial may be had; Braden v. Lemmon, 127-14. A finding beyond the issues is ill and will not support a judgment. A special finding, like a special verdict, a series of instructions, or the like, must be considered as a whole. It can not be dissected into fragmentary parts and successfully assailed in detail. One part may be considered in connection with other connected parts, or parts referring to the same transaction, and if, taken as a whole, the finding legitimately supports the judgment, it will be upheld. If the facts found are essentially the same as those pleaded in the complaint, although, perhaps, the special finding

shall make a somewhat stronger case than the pleading does, this will not take the foundation from under the judgment. It is sufficient if the substance of the issue is established and a finding containing more facts that the plaintiff is required to prove is not ill; provided the facts are connected with the main issue, support it, and do not establish a distinct and independent cause of action; C., C. C. & I. Ry. Co. v. Closser, 126-366.

The court announced a general finding when, being reminded that a special finding had been requested, the general finding was withdrawn, and it was announced that a special finding would be made; afterward, such a finding was made. In this there was no error, but an avoidance of error. The court having been requested to make a special finding, it became its duty to comply with the request, and a refusal so to do would be error; Mitchell v. Friedley, 126-548.

A court has no power to alter or change its special finding after it has been returned and entered of record; Levy v. Chittenden, 120-37. If it is not sufficiently specific to entitle the plaintiff to judgment, the remedy is by exceptions to the conclusions of law, or by a motion for new trial; Clark v. State, 125-8.

552. Rules of trial. On a trial by the court, jury waived, after the finding is announced and entered of record, the power of the court over it is at an end, except that it may, at any time before the close of the term at which judgment is rendered, grant a new trial; Levy v. Chittenden, 120-41.

ARTICLE 21-TRIAL BY AGREED CASE.

553. Agreed case Affidavit. In an agreed case the affidavit, required, is sufficient if made by one only of the parties. Where the agreement of submission is signed by the plaintiff in person, and by the defendant acting by his attorney, representing him in the trial court, and afterward representing him on appeal in the supreme court, and it appears by the record on appeal that the agreement as to the facts was submitted to the trial court by the parties, that it was acted on by the trial court, and that a finding and judgment were made on it, and there is nothing in the record showing that the defendant repudiated the act of his attorney, who represented and represents him, the defendant is bound by the submission; Booth v. Cottingham, 126–432.

ARTICLE 23-NEW TRIAL.

559. Causes for. Matters which are proper causes for new trial must be assigned as such in the trial court, on the motion for new trial, or they will not be considered on appeal. If such matters are assigned as cause for a new trial in the court below, they are properly presented for the consideration of the supreme court by an assignment of error predicated on the overruling of the motion for new trial; it is, however, useless to assign such causes as error for the reason that the court, on appeal, will not consider causes for new trial which have not been presented to and considered by the trial court; Kernodle v. Gibson, 114-452; Bake v. Smiley, 84-212; Todd v. Jackson, 75-272; Wales v. Anderson etc. Co., 60-56.

Under this section irregularity in the proceedings of the court by which a party was prevented from having a fair trial affords a cause for a new trial. The erroneous refusal of a court to grant a continuance and a similar refusal to order a change of venue in a cause are both deemed to be irregularities in the proceedings of a court within the meaning of the eighth clause hereof, and, on appeal from a final judgment, such irregularities can only be made available when they have been assigned as causes for a new trial. On an appeal from a merely interlocutory order a different rule will sometimes be applied. A case of that kind, however, constitutes a rare exception to the general rule; Mannix v. State, ex rel., 115-251.

A party who seeks a new trial on account of surprise and newly discovered evidence must show that he used proper diligence to avoid surprise and to discover the evidence before trial; Lockwood v. Rose, 125--596.

(a) Newly discovered evidence, to warrant the award of a new trial, should be of such a character as to render it probable that a second trial would result differently from the first. (b) In an action to recover damages for slander a new trial should not be granted, on the application of defendant, on the ground of newly discovered evidence, which is alleged to have reference to an act of unchastity of plaintiff committed long after the slanderous words were published; Miller v. Cook, i24-238.

A new trial will not be granted to admit the introduction of impeaching evidence; Brown v. Grove, 116-87.

A complaint, on an application to set aside a judgment, which amounts to no more than that since the trial of the cause in which the judgment was rendered the plaintiff has discovered new evidence, by which he can prove the falsity of the record of the county board establishing a gravel road, and showing notice of the filing of the report . of the commissioners to assess benefits and the confirmation of the report, does not make out a case, under section 396, for relief for mistake, inadvertence, surprise or excusable neglect. Nor is it sufficient as an application for new trial on the ground of newly discovered evidence. To be good for the latter purpose the evidence given on the former trial should be set out and the complaint should have been filed not later than the second term after the discovery of the evidence and within one year from the date of the rendition of the judgment sought to be vacated; Hobbs v. Board etc., 122-187.

New trial to admit newly discovered evidence is not awarded when the affidavits of the proposed witnesses as to what they will testify to show evidence which is merely cumulative. Where testimony on the subject as to which they will testify was introduced on the trial, the proposed testimony is 'within the rule; Graham v. Payne, 122-414.

The refusal of an application for a continuance on the ground of the absence of a witness is no cause for new trial where the testimony proposed to be offered is merely cumulative; the facts expected to be proved by the absent witness having been proved by another witness as fully as it was possible to prove them [see notes to § 410]; Schlotter v. State, ex rel., 127.

A party can not obtain a new trial, as for newly discovered evidence, where the affidavits in support of the motion fail to show the exercise of reasonable diligence before the trial to obtain the testimony to be used on the trial — as where the proffered witnesses during all the time were either members of plaintiff's family or employes in her store, and she made no inquiries of such witnesses to ascertain what, if any thing, they knew in relation to the matters in controversy; Du Souchet v. Dutcher, 113-255.

One who asks a new trial on the ground of newly discovered evidence must show particular acts of diligence. It is not enough for him to aver, in general terms, that he exercised diligence. The law requires diligence before trial, and views with disfavor motions for new trials on the ground of newly discovered testimony; Schnurr v. Stultz, 119-430.

Where a new trial is sought on the ground of newly discovered evidence, the affidavit in support of the motion should show what diligence the party has used to obtain evidence, and it should state the facts, that the court may see whether or not there was sufficient diligence; Graham v. Payne, 122-413.

A new trial will not be granted on the ground of newly discovered evidence where, by the use of reasonable diligence, such evidence might have been obtained and used at the trial, and mere allegations of due diligence in endeavoring to obtain evidence in the first instance will not suffice the facts constituting the diligence used must be stated. The test is, what did the party do in his first effort to procure the evidence he claims to have discovered since the trial? When this is alleged, it becomes a question for the court to determine whether due diligence was exercised; Allen v. Bond, 112-530. Wherefore, if the party has made no effort to ascertain or procure the evidence, he must show an absence of knowledge of facts and circumstances which require him to make inquiry and such a state of facts as will excuse his inactivity; Ward v. Voris, 117-371.

A complaint for a new trial for newly discovered evidence must show, on its face, that the newly discovered evidence is material to some matter in question in the case, and all the facts necessary to the validity of the complaint must be stated in the body of the pleading, as in ordinary cases; Shewalter v. Williamson, 125-374.

A defendant, in a criminal case, can not obtain a new trial on the ground of newly discovered evidence solely by producing a letter exculpating him from the charge and swearing that it was written by a person by whom the letter purports to be signed; March v. State, 117-550.

A judgment will not be reversed for a refusal to award a new trial on the ground of newly discovered evidence unless it is made to appear that such newly discovered evidence is of such a character as to render it probable that a different result would

be produced if a second trial were had -as where the evidence is merely cumulative; Andis v. Richie, 120-139; Schnurr v. Stultz, 119-430.

The fourth statutory cause for new trial, "excessive damages," is proper only in cases of tort: West. Ins. Co. v. S. Manuf. Co., 124-182; Smith v. State, ex rel., 117-173; Clark C. Township v. Brookshire, 114-446; M'Cormick Co. v. Gray, 114345; Thomas v. Merry, 113-91; Lake Erie etc. Co. v. Acres, 108-548.

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So, an action arising on a sheriff's bond, based on the neglect of duty of the principal obligor, being an action ex contractu, an assignment of error that the damages awarded the plaintiff are excessive" is ill assigned, the defendant in judgment failing to assign, in his motion for new trial, the fifth statutory cause of "error in the assignment of the amount of recovery" etc.; Moore v. State, 114-422.

An assignment, as one of the grounds for a new trial, that the decision of the court is contrary to law, does not perform the office of an exception to the conclusions of law stated by the court on a special finding of facts, nor does such an assignment remedy the failure to except to the conclusions of law; Bundy v. M'Clarnon, 118–165. A motion for new trial assigned for cause, "that the court erred in giving to the jury instructions numbered from 1 to 17 inclusive." Where a motion for new trial joins all the instructions together, in general terms, without separating or pointing out any one or more as erroneous, like a joint demurrer to separate paragraphs of a pleading, it can be maintained only by showing that all the instructions are incorrect. A motion for new trial, assigning error on the giving or refusal of instructions, must specify, with reasonable certainty, the particular instruction upon which error is predicated; O. & M. Ry. Co. v. M'Cartney, 121–387.

Misconduct of a juror in separating from the others of the panel after they had retired to deliberate of their verdict, without permission of court, and remaining out of sight of the bailiff charged with the custody of the jury and of the other jurors for some thirty minutes is not such misconduct as to authorize a new trial, when it is made to appear that, by the delinquent's own affidavit, that, during such absence, the delinquent juror did not communicate with any person in relation to the case or on any subject connected therewith. Misconduct of a juror, in order to be sufficient to authorize the granting of a new trial, must be gross and must have resulted, in probable injury to the complaining party and such party must show these facts; New Albany v. M'Culloch, 127–506.

on her

A juror when offered was asked, voir dire, if he had ever served as a juror in that court (the then trial court) in a cause between the same parties; he answered that he had not and he was accepted as a juror in the cause about to be submitted, the plaintiff not objecting. The plaintiff was present at the first trial of her cause; she was present and testified as a witness on the second trial - the matter at bar motion for new trial and her appeal, it was not shown but that she had full knowledge that the juror had served as a juror on the former trial although he answered that he had not. If she had such knowledge it was her duty to present her objection to his serving as a juror at that time. The presumption is raised that she did know the jurors who passed on her case. Generally, parties may rely, and have a right to rely, on the statements of a juror; they are not required to institute an investigation as to the truth of the statements of a juror before accepting him as such. A party, however, if he, at the time, has knowledge of facts making the juror incompetent, has the right to present such facts to the court and have the question of the juror's competency heard and passed on by the court before entering on the trial. Failing to exercise this right a new trial will not be granted on the ground of the misconduct of the juror; Buck v. Hughes, 127-48.

In an appeal from a decree establishing a public ditch and laying an assessment, for benefits, on land of which appellant is the owner it is no ground for new trial that lands other than his were not properly assessed; Goodwine v. Leak, 127-570. In order to present questions arising on the mode of conducting the trial and in admitting and excluding evidence, a motion for a new trial must be filed in the court below; Racer v. Baker, 113-178.

561, Motion, when made. Where a verdict is returned on Thursday of the last week of a term of court, such Thursday not being the last day of the term, a motion for a new trial, made on the fourth judicial day of the next term, comes too late, under this section, and can not be entertained; Harvey v. Fink, 111-251.

A motion for new trial may be made either before or after judgment; provided it be made and filed at the term at which the verdict or decision is rendered, or if the

verdict or decision be rendered on the last day of a term, on the first day of the next term. As used in this section the word "decision " is construed to mean "finding (Jones v. Jones, 91-72). It is proper practice to make and file the motion for a new trial immediately after the verdict of the jury is returned or the finding of facts an nounced by the court; Herkimer v. M'Gregor, 126-260.

This section requires that the application for a new trial must be made during the term at which the verdict or decision is rendered, or if the verdict or decision be rendered on the last day of the session, or term, of the court, then on the first day of the next term. It is matter of exceeding doubt whether an attorney, in a case where the verdict was not rendered on the last day of the session or term, has authority to bind his client by an agreement that the application may be made at the next ensuing term, unless such agreement was entered on the minutes of the court or made in conformity with the provisions of the statute (see § 968, cl. 1); Amer. Bronze Co. v. Clark, 123-232.

561, 562. Motion, when made-Manner. Under these sections it is necessary (1) that a motion - which is an application to a court-must be made or presented to the court, and (2) that the cause or reason on which the motion is grounded shall be reduced to writing and filed at the same time as the motion is made; the motion to be entered by the court and the written causes filed by the clerk. Merely to write out and file a motion for a new trial with the clerk is not to make an application for new trial, within the meaning of the statute; Emison v. Shepard, 121-185.

563. Causes discovered after term. Proceedings on a complaint for a new trial after the close of the term at which a cause has been disposed of constitute a separate and distinct action; such a complaint can be filed only where some sufficient cause or causes have been discovered since the term closed. The ultimate result reached through such proceedings constitutes a final judgment, from which an appeal lies to he supreme court; Harvey v. Fink, 111-254.

ARTICLE 24-JUDGMENT.

564. On general verdict. If the judgment does not follow the verdict, or is not such a judgment as the party was entitled to have rendered on the verdict, to present any question as to the amount or form of the judgment, it is necessary to make a motion to modify the judgment and properly reserve exceptions in case the motion is overruled; B. & G. Furn. Co. v. Hascall, 123-510.

564, 579. On general verdict. Section 564. provides that the judgment "must be in conformity to the verdict," and section 579 that it "shall specify clearly the relief granted." In an action for the possession of land, the complaint claimed title to 120 acres, the other pleadings and the answers of the jury to interrogatories showing that only a narrow strip was in controversy, the following verdict was returned: "We, the jury, find for the plaintiff and assess his damages at $42." The verdict is insufficient to enable the court to render a proper judgment by reason of the absence of a description of the property; C., H. & I. RR. Co. v. Clifford, 113-470.

568. Against part of plaintiffs or defendants. If two or more persons institute a joint action, alleging a joint cause of action, and it turns out, on the trial, that, on the facts alleged in the complaint, some — - but not all—of the plaintiffs are entitled to recover, the court or jury-as the case may be will so find and judgment will be rendered accordingly. So, where a number of defendants are sued and, after the evidence is heard, it appears that there should be a recovery as to some but not all of the defendants, the court or jury may so find and the judgment will be so rendered; Nicodemus v. Simons, 121-567; Wilson v. Buell, 117-315; Rush v. Thompson, 112158.

570. Defendants all served - Judgment against part only. Under this section every complaint against two or more defendants, whether founded on contract or tort, will be treated as both joint and several. So, although the complaint may allege a joint liability the plaintiff will be entitled to judgment against part of the defendants if he proves a cause of action against them and not against all. The object of the provision obviously is to prevent a plaintiff who proves a good cause of action against some and not against all of the defendants from being subjected to the expense and delay of a new action; Lower v. Franks. 115-338.

588. Confession by attorney-Affidavit. A judgment by confession has all the qualities, incidents and attributes of other judgments; wherefore it can not be valid