have it noted in the bill of exceptions: When the same evidence has been tinuing on every repetition of the question, unless something transpires to show that it is waived: People v. Melvane, 39 Cal. 617. Taking a nonsuit is not a waiver of exceptions taken: Natoma etc. Co. v. Clarkin, 14 Cal. 544. § 231. [228.] The point of the exception shall be particularly stated, and may be delivered, in writing, to the judge, or entered in his minutes, and at the time or afterwards, be corrected until made conformable to the truth. If an objection is made to any ruling of the court in the progress of a trial, and the truth of the statement thereof is not agreed upon between the counsel and the court, the counsel may verify his statement thereof, by his own oath and that of two respectable and disinterested by-standers, and file the same as an exception to the ruling objected to. Such statement must be filed within the day that the objection is made, and not otherwise. Within one day thereafter, the adverse party may file a statement of the objection as prepared or approved by the court, together with the affidavits of not more than three respectable and disinterested by-standers concerning the truth or falsity of the statement of the exception as filed by the counsel, and prepared or approved by the court. Each statement of the exception, and all affidavits concerning either of them when filed as herein required, shall be deemed a part of the record of the cause, and upon an appeal or review, the appellate court must first ascertain therefrom the truth of the matter, as far as possible, and then determine the law arising thereon. The court must allow the counsel a reasonable time to procure the verification of his statement as herein required; and all affidavits of by-standers shall be taken by the clerk of the court, who must certify thereon, if he is satisfied of the fact that the by-stander is respectable and disinterested. Exceptions how taken. - The exception must be taken at the time the error occurs or it will be presumed to have been waived: Rogue River Mining Co. v. Walker, 1 Or. 341; and unless an exception be reserved, even though an objection be made, the objection is waived and cannot after wards be raised: Castro v. Gill, 5 Cal. 42. The reason is that the court may have an opportunity of correcting its ruling: Letter v. Putney, 7 Id. 423; or the adversary may amend: Goodale v. West, 5 Id. 341; Posten v. Rassette, 5 Id. 469. The bill of exceptions should be presented immediately after trial, but may be settled and allowed at any reasonable time thereafter, at the convenience of the judge: Ah Lee v. Gong Choy, 13 Or. 205. It is too late if the bill of exceptions is not presented until the close of the term or within the extended time allowed by the court: Morganv. Thompson, 13 Or. 230. The point of objection must be particularly stated. For instance, as to admission or rejection of evidence, the party must lay his finger on the point: Frier v. Jackson, 8 Johns. 496; Jackson v. Cadwell, 1 Cow. 622; Whiteside v. Jackson, 1 Wend. 418; Waters v. Gilbert, 2 Cush. 27; Covil laud v. Tanner, 7 Cal. 38; Kiler v. Kimball, 10 Id. 268; People v. Glenn, 10 Id. 37; Voorman v. Voight, 46 Id. 392; and must specify the ground of his objection: People v. Chee Kec, 61 Id. 404. Exceptions to a charge ought to point out the specific portions excepted to: Hicks v. Coleman, 25 Id. 146; St. John v. Kidd, 26 Id. 263; Sill v. Reese, 47 Id. 348; Robin son v. W. P. R. R. Co., 48 Id. 425; Oct. 11, 1862, Rider v. Edgar, 54 Id. 127; though $228. perhaps this is otherwise where the different portions are manifestly inconsistent: McCreery v. Everding, 44 Id. 246; in which case it was held that an exception "to each of the instructions requested by defendant" was sufficient. It is sufficient for the opposite party to except generally to instructions given at the request of the opposite party; but an exception to the charge given by the court of its own motion must specify the proposition which is deemed objectionable: Shea v. P. & B. V. R. R. Co., 44 Cal. 415. It is sufficient, however, to except "to that part of the charge about probable cause," reciting the first sentence employed by the court in treating of that subject: Rogers v. Mahoney, 62 Id. 611. It was held in an action for forcible entry and detainer that the supreme court would not review the question of damages on the ground that the proof did not warrant them; defendant should either have moved for a new trial or specified in his bill of exceptions in what particulars the evidence did not justify the decision in this respect, and have brought up the evidence on this point: Jones v. Shay, 50 Id. 508. $229. § 232. [229.] No particular form of exception shall be Oct. 11, 1862, required. The objection shall be stated with so much. of the evidence or other matter as is necessary to explain form of excep it, but no more. Form of exception. The rule generally in regard to the bill of exceptions is thus stated in Estate of Page, 57 Cal. 238, 239: "To make it [an exception] effectual in a bill of exceptions, the objection should be stated, and also the ground upon which it was made. If it was not upon grounds of error of law, the proper mode in an action tried by the court without a jury is to ask the court to decide what counsel may consider an applicable principle of law, and upon refusal, to have it noted in the bill of exceptions: Griswold v. Sharp, 2 Id. 23; Touchard v. Crow, 20 Id. 163. But the mere statement in a bill of exceptions that a party excepted to a decision, unaccompanied by the objection of the court and the grounds -whether of law or of fact-upon No particular tion required. 10 Or. 162. which it was made, does not consti- 12 Or. 311. tute an exception upon which any question involved is examinable by this court; and under such circumstances we can only deal with such questions as may arise upon the judgment roll." Deficiencies in the evidence must be specifically stated: Estate of Page, 57 Cal. 238; Perham v. Kuper, 61 Id. 331; Rider v. Edgar, 54 Id. 127. The bill of exceptions should show evidence sufficient to explain the applicability of the instruction objected to, or requested and refused: Richards v. Fanning, 5 Or. 356. Where it is proposed to show an abuse of discretion, the bill must contain all evidence upon which such conclusion was founded: State v. Jackson, 9 Id. 457. Oct. 11, 1862, $230. § 233. [230.] The statement of the exception, when settled and allowed, shall be signed by the judge and tions not taken filed with the clerk, and thereafter it shall be deemed and No excep When excep or allowed. 4 Or. 352. 5 Or. :55. 10 Or. 395. 11 Or. 39. 13 Or. 230. 16 Or. 220. taken to be a part of the record of the cause. tion need be taken or allowed to any decision upon a matter of law when the same is entered in the journal, or made wholly upon matters in writing and on file in the court. Signing by judge. Although certified by the attorneys on both sides to be correct, a statement does not become a bill of exceptions unless signed by the judge: Singer Mfg. Co. v. Graham, 8 Or. 17. Where the judge refuses to sign the bill of exceptions, the proper remedy is by mandamus, and no delay of the judge will affect the appellant: Ah Lep v. Gong Choy, 13 Id. 205. Exception, when not necessary. No exception need be taken as to matters apparent on the face of the record: Scott v. Cook, 1 Or. 24. If the record contains internal evidence that a document on which the decision rests is a forgery, the objection may be taken for the first time in the appellate court: Fuller v. Ferguson, 26 Cal. 575. Where a complaint shows on its face that plaintiff is not entitled to relief, the defect may be taken advantage of in the appellate court, even though no demurrer be filed: White v. Fratt, 13 Id. 521. When a party stands by a pleading to which a demurrer is sustained, no exception to the decision is requisite: Smith v. Lawrence, 38 Id. 27. § 238. Oct. 11, 1862, $231. Definition of new trial. Oct. 11, 1862, 232. For what Motion must state the grounds thereof when supported by affidavits. § 239. When counter-affidavits allowed. § 234. [231.] A new trial is a re-examination of an issue of fact in the same court after a trial and decision or verdict by a court or jury. § 235. [232.] The former verdict or other decision may be set aside and a new trial granted, on the mocauses granted. tion of the party aggrieved, for any of the following causes materially affecting the substantial rights of such party: 11 Or. 172. 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial; 2. Misconduct of the jury or prevailing party; 3. Accident or surprise which ordinary prudence could not have guarded against; 4. Newly discovered evidence, material for the party. making the application, which he could not with reasonable diligence have discovered and produced at the trial; 5. Excessive damages, appearing to have been given under the influence of passion or prejudice; 13 Or. 141. 15 Or. 95. 19 Or. 247. 6. Insufficiency of the evidence to justify the verdict 20 Or. 458. or other decision, or that it is against law; 7. Error in law occurring at the trial, and excepted to by the party making the application. New trial generally.-A motion for a new trial is addressed to the sound legal discretion of the court, and the supreme court will interfere only in case of a plain abuse of such discretion: Garnier v. Grimand, 12 Pac. C. L. J. 267. A new trial should certainly never be granted when it appears that it would avail nothing: Tolmie v. Dean, 1 Wash. 46. The party alleging error in granting or refusing a new trial must make the error affirmatively appear; i. e., he must show an abuse of discretion: Duell v. Bear R. Co., 5 Cal. 86; Jacks v. Cooke, 6 Id. 164; Weddle v. Stark, 10 Id. 301; Hansel v. Barnhisel, 11 Id. 340; Bensley v. Atwill, 12 Id. 240; McGarrity v. Byington, 12 Id. 432; Peters v. Foss, 16 Id. 358; Quinn v. Kenyon, 22 Id. 82; Peterie v. Bugby, 24 Id. 422; Mauge v. Heringhi, 26 Id. 581; Hawkins v. Reichert, 28 Id. 535; Hall v. "Emily Banning," 33 Id. 525. The supreme court will not presume error or abuse of discretion of the lower court in granting or refusing a new trial: Thompson v. Morrow, 2 Id. 99; Johnston v. Hancock, 4 West Coast Rep. 418. The court may refuse a new trial though the parties assent: Phelan v. Ruiz, 15 Câl. 90. When the appeal is from an order granting a new trial, the burden is on the appellant to show that the discretion accorded to the trial court in such matters has been improvidently exercised, and that the rules of law governing such motions have been violated: Hobler v. Cole, 49 Id. 251. A new trial will not be granted on grounds contradictory to the admissions on record of the moving party: Vandall v. S. F. Dock Co., 40 Id Where on ap A motion for a new trial for mat- When a decision is rendered in va- Irregularities. Going to trial without first disposing of a demurrer to the answer, where mo objection was made at the time of trial, is not ground for a new trial for irregularity: Calderwood v. Tevis, 23 Cal. 335. Rendering judgment by default, ex parte, at nine, A. M., on a particular day, against defendants summoned to appear in the court of first instance at ten, A. M., on that day, was held an irregularity: Parker v. Shephard, 1 Id. 131. It was held irregular for the judge to grant a new trial, Oct. 11, 1862, $232. and then immediately proceed to render a contrary judgment without hearing or notice: Mitchel v. Hackett, 14 Cal. 667. Where the judge stated in the course of a trial before a jury, with regard to one of the plaintiff's witnesses, who was being cross-examined, that she was one of the most respectable women in his neighborhood, which he afterwards qualified by saying he did not mean to say that, but that she was a woman of respectability, the supreme court considered that the judgment did not depend in any material degree upon the testimony of this witness. If it had, they would have reversed it: McMinn v. Whelan, 27 Id. 320. Where the verdict must have been given under a state of great excitement, preventing a fair and just trial, it was sufficient to ground an order for a new trial: People v. Acosta, 10 Id. 196. The fact that after a verdict of guilty has been rendered the accused ascertains for the first time that before the jury was impaneled a juror had formed and expressed an opinion as to his guilt, is not a ground for a new trial: People v. Fair, 43 Id. 137; People v. Mortimer, 46 Id. 120. An omission to rule upon an objection properly made and not waived is an "irregularity of court": Estate of Brooks, 54 Id. 473; Dewey v. Frank, 62 Id. 343. The admission of immaterial or irrelevant evidence is not ground for a new trial unless it has prejudiced the party in the mind of the court or jury: See Winkley v. Foye, 33 N. H. 171; S. C., 66 Am. Dec. 715, and the very elaborate note on this topic in the latter report, pp. 717-720. Misconduct of jury. - As to misconduct of the jury in separating during the trial or in communicating with other persons concerning the case, against the admonition of the court, see the note to § 198 [196], ante; and see also § 202 [200], ante; and see the same sections in regard to receipt of the affidavits of jurors to impeach their verdict. On a trial for felony, if it is shown either that a juror has engaged in conversation with others on the subject of the charge upon which he is to pass, or has voluntarily listened to the remarks of others addressed to himself or to third parties, upon matters connected with the charge, misconduct sufficient to authorize the court to set the verdict aside is prima facie established: People v. Turner, 39 Cal. 375; People v. Brannigan, 21 Id. 340; McCann v. State, 9 Smedes & M. 465; State v. Prescott, 7 N. H. 288. Where one of the jury addressed defendant's counsel, and said that there was no use in the lawyers occupying so much time examining witnesses and trying to humbug the jury, and that the one who made the shortest speech would get a verdict, that was considered by the supreme court not to be sufficient misconduct to justify a new trial: Taylor v. Cal. Stage Co., 6 Cal. 229; see People v. Dennis, 39 Id. 625. Where a newspaper slip was handed by a deputy sheriff to a jury during the trial, containing matters relating to the trial but not in evidence, and was perused by them, and the court instructed the jury that the slip should be wholly disregarded by them, and it appeared that the perusal could not have prejudiced the losing party, it was held not to be such misconduct as to be ground for a new trial: Thrall v. Smiley, 9 Cal. 529. Where the sheriff was asked by one of the jurors if they were to be governed by the instructions of the court, and answered that he would ask the judge, which he did, whereupon the judge said that "the instructions were for them to be governed by, or they would not have been given," which answer the sheriff repeated to the jury, it was held there was no misconduct of the jury: Nelson v. Mitchell, 10 Cal. 92. Where in a criminal case the jury were taken to a hotel to get their dinner, and the proprietor of the hotel spoke to some of the jurors, and told them to convict the defendant, it was held that, however improper the passing remark of the hotel proprietor was, it did not constitute misconduct of the jury: People v. Brannigan, 21 Id. 342. The mere retiring by several jurors for a few moments, with the permission of the sheriff when in his custody, out of his sight, to obey a call of nature, without communicating with any one, is no misconduct: People v. Moore, 41 Cal. 238. In a case where the jury agreed amongst themselves that each member should set down a sum according to his own judgment, that the aggregate should be divided by twelve, |