4. A motion for new trial is not needed in an agreed case tried under section 553. -State v. Board, 66 Ind. 216.

5. A motion on the ground of incompetent or illegal evidence heard should clearly designate such evidence.- Galvin v. State, 64 Ind. 96; Evans v. State, 67 id. 68. The motion is part of the record without bill.- Hunter v. Hatfield, 68 Ind. 416.

6. A new trial must be moved at the term of trial, unless for cause found afterward. Smith v. Little, 67 Ind. 549.

560. Small damages, no ground. 421. 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 injury sustained. (353)

I. A new trial is not granted upon account of newly-discovered evidence which is merely cumulative. - Dodds v. Vannoy, 61 Ind. 89.

2. Čauses for new trial discovered during the trial term must be presented at that term, not afterward.- Trustees v. Reynolds, 61 Ind. 104.

3. When a party knows of the absence of his witnesses, and makes no motion for a postponement on that account, he can not afterward, on that ground, claim a new trial. Myers v. Conway, 62 Ind. 474.

4. The consent of the adverse party that a new trial be granted does not necessarily make its refusal erroneous.-- Wright v. Miller, 63 Ind. 220.

5. He who takes a new trial must take it as to the whole case.-Bradley, ex parte, 48 Ind. 548.

6. This section applies to a suit by a father for the death of a child.- Gann v. Worman, 69 Ind. 458.

561. Motion, when made. 422. The application for a new trial may be made at any time during the term at which the verdict or decision is rendered; and if the verdict or decision be rendered on the last day of the session of any Court, or on the last day of any term, then, on the first day of the next term of such Court, whether general, special, or adjourned. (354.)

1. The Court can not, without the consent of parties, give time beyond the term for an application for a new trial.- Krutz v. Craig, 53 Ind. 561; Wilson v. Vance, 55 id. 394; Cutsinger v. Nebeker, 58 id. 401; Penn. Co. v. Sedwick, 59 id. 336; Northcutt v. Buckles, 60 id. 577.

2. The motion must be in writing.—Whaley v. Gleason, 40 Ind. 405; Shover v. Jones, 32 id. 141; Stevens v. Nevitt, 15 id. 224.

3. For surprise as cause, counter-affidavits are competent.- Mitchell v. Chambers, 55 Ind. 289.

4. In an application upon account of newly-discovered evidence, the complaint must set out all that given on the former trial. Sanders v. Lay, 45 Ind. 229; Trustees v. Reynolds, 61 id. 104.

5. When the evidence is not in the record, it will be presumed, upon appeal, to have sustained the verdict.-Coyner v. Lynde, 10 Ind. 282; Hunter v. Thomas, 37 id. 145.

562. Manner of applying. 423. The application must be by motion, upon written cause filed at the time of making the motion. The cause mentioned in the second, third, and seventh clauses of section three hundred and fifty-two [§ 420], must be sustained by affidavit showing their truth. (355.)

1. If the cause for new trial is not presented below, it will not be considered on appeal. Tinder v. Association, 38 Ind. 555; Bowman v. Phillips, 47 id. 341; Rhodes v. Mummery, 48 id. 216; Higham v. Warner, 69 id. 549; Potts v. Felton, 70 id. 166. 2. Payment of costs can not be imposed as a condition precedent.- Ammerman v. Gallimore, 50 Ind. 131; Murray v. Ebright, id. 362; Cavenaugh v. R. R. Co., 49 id. 149. 3. In an application upon the ground of newly-discovered testimony, the affidavit of the witness must be produced, if procurable.- Shipman v. State, 38 Ind. 549. 4. Only two new trials can be granted to the same party, as such, for any of the

statutory reasons; yet a case may be reversed for error otherwise and a third trial follow. Shirts v. Irons, 47 Ind. 445; Headrick v. Wisehart, 57 id. 129.

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563. Causes discovered after term-Limit. 424. Where causes for new trial are discovered after the term at which the verdict or decision was rendered, the application may be made by a complaint filed with the Clerk, not later than the second term after the discovery, on which a summons shall issue, as on other complaints, requiring the adverse party to appear and answer. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the Court upon the evidence produced by the parties. But no such application shall be made more than one year after the final judgment was rendered. (356.)

1. On a complaint for new trial, neither party is entitled to a jury. — Houston v. Bruner, 59 Ind. 25.

2. Newly-discovered evidence must not be cumulative; nor can it be the testimony of a party who might have attended at the former trial.- Cox v. Harvey, 53 Ind. 174. 3. A second motion for a new trial is not allowable for the same cause; but a second or even third motion is allowable for different causes not known or knowable until the original motion was ruled upon.- White v. Perkins, 16 Ind. 358.

4. The cause must have had an existence at the time the decision was rendered, but must have been discovered afterward.- Stanley v. Peeples, 13 Ind. 232.

564. On general verdict. 440. When a trial by jury has been had, and a general verdict rendered, the judgment must be in conformity to the verdict. (370.)

1. The judgment of the Court must follow the verdict, if the latter stand.- Mitchell v. Geisendorff, 44 Ind. 358; Bowles v. Stout, 60 id. 267; Hershman v. Hershman, 63 id. 451.

565. On special verdict. 441. Where the verdict is special, or where there has been a special finding on particular questions of fact, the Court shall render the proper judgment. (371.)

1. A verdict is not effective for any purpose, unless followed by an adjudication of the Court thereon.- Shirk v. Wilson, 13 Ind. 129.

566. On pleadings, notwithstanding verdict. 442. When, upon the statements in the pleadings, one party is by law entitled to judgment in his favor, judgment shall be so rendered by the Court, though a verdict. has been found against such party. (372.)

1. When, by pleading, the plaintiff's right to recover is admitted, judgment should be rendered by the Court accordingly, regardless of an adverse verdict.-Western, etc., Co. v. Fenton, 52 Ind. 1; New Albany, etc., Co. v. Stallcup, 62 id. 345.

567. Where plaintiff is barred as to part. 49. In actions against two or more defendants, where the plaintiff is barred by the provisions of this Act as to one or more of the defendants, and is entitled to recover against others for any cause, judgment shall be rendered against those liable and for those not liable. (222.)

1. An acknowledgment of a debt by one partner, after dissolution, will not take it out of the statute as to the others.- Kirk v. Hyatt, 2 Ind. 322.

568. Against part of plaintiffs or defendants. 438. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves. (368.)

569. Against defendants, when joint or several. 439. In a suit against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper. (369.)

570. Defendants all served-Judgment against part only. 436. Though all the defendants have been summoned, judgment may be rendered against any of them, severally, when the plaintiff would be entitled to judgments against such defendants if the action had been against them severally. (366.)

I. A judgment may be rendered in favor of some defendants and against others, in a real action. Clements v. Robinson, 54 Ind. 599; Richardson v. Jones, 58 id. 240. 2. But separate judgments can not be taken upon joint contracts.- Erwin, v. Scotten, 40 Ind. 389; Murray v. Ebright, 50 id. 362.

571. Set-off- Judgment for excess. 443. If a set-off established at the trial exceed the plaintiff's claim so established, judgment shall be rendered for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment shall be given therefor. (373) 572. Judgment in replevin. 444. In an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property, or the value thereof in case a delivery can not be had, and damages for the detention. When the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for the return of the property, or its value in case a return can not be had, and damages for the taking and withholding of the property. (374)

1. In replevin, if the property is not found, or the plaintiff can not give bond, and is successful, the jury must find the value of the property, as well as damages for detention.- Chissom v. Lamcool, 9 Ind. 530.

2. A defendant is not entitled to a dismissal of the suit upon his verified disclaimer, filed as an answer.- Choen v. Porter, 66 Ind. 194.

573. Proof and assessment on default. 437. If the taking of an account, or the proof of a fact, or the assessment of damages is necessary to enable the Court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the Court may take the accounts, hear the proof, and, in actions founded on contract, assess the damages, or may refer the same to a commissioner, or may direct the same to be ascertained or assessed by a jury. (367.)

1. The right of a defendant, after default upon an inquest of damages, does not extend so far as to allow him to introduce any matter of defense to the merits; but, otherwise, he has therein all the rights of a party litigant.- Briggs v. Sneghan, 45 Ind. 14.

2. In an action against several defendants on a joint contract, judgment may be had against one or more of them, and it will be a bar to a subsequent recovery against any of them upon the same cause.- Richardson v. Jones, 58 Ind. 240.

3. In a suit against several defendants, severally, or jointly and severally, liable, judgment may be rendered against part of them at one term, and against the rest, upon continuance, at another term.- West v. Asher, 38 Ind. 291.

574. On mortgage or lien final. 448. It shall not be necessary in any action upon a mortgage or lien to give time for the payment of money, or for doing any other act, but final judgment may, in such cases, be given in the first instance. (378.)

575. In foreclosure- Sale ordered. 449. In the foreclosure of a mortgage, the sale of the mortgaged property shall in all cases be ordered. (379.)

576. Without relief- When separate. 451. When a judgment is to be executed without relief from appraisement laws, it shall be so ordered in the judgment. When a plaintiff has included in one action demands subject to the appraisement laws with demands made payable without any relief from appraisement laws, the Court may render separate judgments upon such demands. (381.)

1. The statute authorizing judgments to be entered and enforced without valuation or appraisement is constitutional.— Smith v. Daggett, 14 Ind. 442.

2. On judgment for a tort, the defendant is entitled to valuation.— Smith v. Davis, 58 Ind. 434

3. When a surety has satisfied a contract waiving valuation laws, the remedy against his principal is without relief also.- See section 1217.

4. Costs, in a judgment without relief, are collectible in the same manner.- Martindale v. Tibbetts, 16 Ind. 200.

577. Against officers-When without relief or stay. 452. Hereafter all judgments recovered against any Sheriff, Constable, or other public officer, administrator, executor, or any other person or corporation, or the sureties of any or either of them, for money collected or received in a fiduciary capacity; or for a breach of any official duty; or for money or other article of value held in trust for another, shall be collectible without stay of execution or benefit of the valuation or appraisement laws of this State.

578. On bonds-When without relief. 462. Hereafter all judg ments recovered upon bonds, written undertakings, or recognizances executed in any legal proceeding, civil or criminal, shall be collectible without relief from valuation or appraisement laws of the State of Indiana.

579. Entry-What it shall specify. 446. The judgment must be

entered on the order-book, and specify clearly the relief granted or other determination of the action. (376.)

1. If the form of a judgment be objectionable, a motion must be made below to modify it, or it will be, as to form, affirmed on appeal.- Brown v. Ellis, 35 Ind. 377; Forgey v. Bank, 66 id. 123.

2. Á single judgment or decree, in any case which may be disposed of on any day of the term, may be separately read, and signed forthwith, so that execution may issue thereon. Jones v. Carnahan, 63 Ind. 229.

3. The collection of a void judgment may be injoined; but one which is simply voidable must be appealed from.- Earl v. Matheney, 60 Ind. 202; Hinsey v. Feeley, 62 id. 85.

4. A judgment by confession entered without the knowledge or consent of the creditor, unless subsequently ratified by him, is wholly invalid.- Haggerty v. Juday, 58 Ind. 154.

580. Satisfaction. 447. Satisfaction of a judgment or credits thereon may be ordered, for sufficient cause, upon notice and motion. (377)

581. Indorsement of payment on record, etc.-Effect. 461. Every indorsement of payment, satisfaction, or release in whole or in part, upon the record or margin thereof of any judgment or decree, or upon any execution or order of sale issued thereon, signed by the judgmentplaintiff or his attorney-in-fact; or by the assignee of such judgmentplaintiff (whose assignment is upon or annexed to the record of such judgment or decree and attested by the Clerk, when attested by the Clerk) upon the record of such judgment or decree; or by the Sheriff upon such execution or order of sale,- shall operate as a satisfaction or release of such judgment or decree, or of such part thereof so indorsed as paid, satisfied, or released in favor of subsequent purchasers or lien-holders in good faith. And when such satisfaction, payment, or release is entered by an attorneyin-fact, such fact shall be noted on the margin of the record or the execution, as the case may be; and such power of attorney shall be recorded in the miscellaneous records of the Recorder's office.

582.

Judgment-docket-Contents. 587. The Clerk of every Court of record shall keep a docket, in which he shall enter, within thirty days after each term of the Court, in alphabetical order, a statement of each judgment rendered at such term, containing

First. The names, at length, of all the parties.

Second. The amount of the judgment and costs, and date of its rendition.

Third. If the judgment be against several persons, the statement shall be repeated under the name of each defendant, in alphabetical order. (513.)

583. Entry of stay of execution. 588. Recognizances of bail for stay of execution shall be entered in such docket immediately after the taking or return thereof, specifying the judgment and its amount, the date of the recognizance, and names of the bail. (514.)

584. Record-Open to all. 589. Such docket shall be a record, and open during the usual hours of transacting business to the examination of any person desiring it. (515.).

585. Neglect of Clerk to enter judgment, etc. - Liability. 590. Every Clerk neglecting to enter any judgment or recognizance, as herein required, shall be liable to any person injured for the amount of damages sustained by such neglect, to be recovered in an action against the Clerk alone, or upon his official bond against him and his sureties. (516.)