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twenty days, and such motion be denied the time to settle a bill of exceptions may be extended twenty days from the date of such denial without the production of such certificate.

of proceedings

new trial.

SEC. 63. In all cases hereafter taken to the supreme court Incorporation on writ of error or appeal, where a motion for a new trial on motion for has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken and error Exceptions. assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the supreme court.

to sign.

resignation,

SEC. 64. If the truth of the case be fairly stated in such Duty of judge exceptions, it shall be the duty of the judge holding such court to sign such statement, and he may be compelled to do so by the court to which any writ of error may by law be brought, upon the judgment rendered in such cause, or which shall have authority to decide on such exceptions when returned by him. And in case of the death, resignation, expira- Death, tion of the term of office, or vacancy in office from any other etc., of judge. cause, of the judge before whom the cause was tried, when there shall be an official stenographer of such court who has taken full minutes of the testimony, exceptions and charges of the judge at such trial, such minutes shall be prima facie evidence of the testimony given, exceptions taken, and the charge of the court, and other proceedings on such trial, and such exceptions may be settled and signed by the successor in office of such judge, or by any judge authorized in such cases to perform the general duties of the judge of such court. SEC. 65. If a bill of exceptions be signed in a cause it shall Motion to set not prevent the argument of a motion to set aside the verdict in such cause, on the ground that such verdict was against evidence; but such motion shall be argued, either before or after the decision of the court on the bill of exceptions, as the court shall direct.

aside verdict.

SEC. 66. If such bill of exceptions be taken in any case Filing and pending in any circuit court, it shall be filed with the clerk return of bill. of such court, who shall return the same, together with the record and other proceedings, in any cause which shall be removed by writ of error, or otherwise.

Of Referees.

upon consent

SEC. 67. Issues joined in any civil action at law, whether of Reference fact or of law, may, upon the written consent of the parties, of parties. filed with the clerk or upon their oral consent in open court, be referred to such person or such three persons as may be agreed upon by the parties, or appointed by the court in case the parties fail to agree.

upon motion.

SEC. 68. When the parties do not consent, the court may, Reference upon the motion of either, or upon its own motion, direct a like reference in either of the following cases:

How trial conducted.

Failure of witness to attend or refusal to testify.

Decision of majority.

Powers of judge.

Report.

Notice of filing of report.

1. When the trial of an issue of fact shall require the examination of mutual accounts, or of a long account on one side only, or where the taking of an account shall be necessary for the information of the court before judgment; but no such case shall be referred if either party shall, within ten days after the joining issue, file with the clerk a written demand for a trial by jury;

2. When a question of fact other than upon the pleadings shall arise, upon motion or otherwise, either before or after the judgment; and the circuit judge, in vacation, may, by an order under his hand, direct such a reference on the written application of either party, which application, with notice. of the time and place, within the county where the cause is pending, when and where the same will be presented, shall be served on the opposite party or his attorney, for such length of time before presentation as shall be required by the rules of the circuit courts for notices of special motions.

SEC. 69. The trial by such referees shall be conducted in the same manner as a trial by the court; they shall have the same power to administer oaths, to issue process to compel the attendance of witnesses, to grant continuances, to preserve order, and to punish all violations thereof, and if any witness shall fail to attend before such referee or referees, after being duly summoned or subpoenaed, according to the practice of the court, or being present, shall refuse to be sworn or to testify, such referee or referees, if in term time, may certify the facts to the court, or if in vacation, to any judge of the circuit court at chambers, and such court or judge may thereupon, if the facts certified shall appear to warrant it, punish such witness as for a contempt of court, in the same manner as the court could do if the witness had committed such contempt before such court. When more than one is appointed, they must all meet to hear proofs, arguments, and to deliberate; but a decision of the majority shall be regarded as their decision. The circuit judge may, by an order under his hand, filed with the clerk, discharge any referee on cause shown by affidavit, and may, in like manner, fill any vacancy that may occur in their number, or may direct the reference to proceed and be concluded without filling any such vacancy. He shall, in like manner, have power, on cause shown, to make an order for expediting the proceedings before referees, and to compel a report or the signing of a bill of exceptions.

SEC. 70. The referees shall report to the court in writing, showing therein the facts found, and the conclusions of law separately; and such report may be filed in term time or in vacation, and shall stand as the finding of the court in term time, unless excepted to, and judgment may be entered thereon in the same manner as if the action had been tried by the court.

SEC. 71. When the referees shall file their repo: the clerk shall, without delay, give notice thereof, in writing, to the

respective parties, or their attorneys, in the manner provided for the service of notices in the circuit court, and immediately indorse on said report, under his hand, his certificate of the giving of such notice, and the time when the same was given, which certificate shall have the same effect as evidence as the return of service of an original writ by a sheriff; and either party, within ten days after receiving such notice, may file with the clerk exceptions in writing to any conclusion of law Exceptions in such report, and shall serve a copy of such exceptions on the too opposite party, and exceptions being filed and served as afore of law. said, the case may be noticed for argument before the court, Argument on such exceptions, on any day in term, on same notice as shall be requisite for special motions; but it shall not be necessary for the parties to file exceptions to the report, in order to obtain a review of any ruling of the referees embodied in a bill of exceptions, settled as provided by the next section.

clusions

before court.

referees.

SEC. 72. Either party, on the hearing before the referees, Exceptions on shall be entitled to take exceptions to any ruling of the hearing before referees, in the same manner as on trial in open court; and in case exceptions are so taken, the parties respectively shall be notified by the referees of the time and place when and where they will meet to complete their report, at which time they shall be informed of the conclusions of the referees; and the parties so excepting, may then, or previous to such time as the referees shall then adjourn to, prepare a bill of exceptions, which shall be settled by the referees on such ad- Settlement journed day, and shall then be annexed to and filed with their of bill of report, and a review thereof may be had in the same manner as of exceptions to the report.

exceptions.

SEC. 73. On the hearing of such bills of exceptions, or upon Action exceptions to the report, or both, the circuit court may con of court. firm or set aside such report, in whole or in part, and in its discretion refer the case back to the referees, or enter judg ment thereon; and in case that judgment shall be entered thereon, error may be brought on such judgment as in other cases, in which case the bill of exceptions, if any, the report and the exceptions to the report, shall be considered as form- Finding of ing a part of the record in the case, and the finding of facts as special by the referees shall be treated as a special verdict.

fact treated

verdict.

call parties as

SEC. 74. The referees shall be entitled to call the parties Referees may as witnesses in the case on which the court might call them, witnesses. if the hearing were in open court; and in all cases where motions are referred, the referees shall be entitled, at their option, to call and examine the parties and their witnesses personally, instead of hearing the motion on affidavits; and May examine commissions may be obtained for the taking of testimony to personally. be used on hearings before referees, in the same manner as on trials in open court.

witnesses

SEC. 75. The referees shall be allowed such compensation Compensation. for their services as the court may deem just, which shall be taxed as a part of the costs in the cause, or the parties and

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Court's power over audítors.

Use of report as evidence.

Compensation.

the referees, by stipulations to be annexed to the report, may agree on the rate of compensation to be made to the referees. and in every case each referee shall attend to, and return with the report, a certificate under his hand, setting forth the time actually expended by him in the business of such reference: Provided, That six hours shall be considered as one day, and three hours one-half day for the purpose of fixing the time employed by any referee upon such reference; and whenever a referee shall fail to report, certify, and return, as aforesaid, the time employed by him in any reference, he shall be deemed to have waived all compensation for his services as such referee: And Provided further, That whenever a stipulation in writing, as aforesaid, shall be made between the parties and the referees, fixing the compensation, such stipulation shall be attached to, and returned with the report, and the court shall allow the compensation so fixed, and no other. SEC. 76. Whenever a cause is at issue, and it shall appear that the trial will require the investigation of accounts, or the examination of vouchers the court in which such issue is to be tried, may appoint one or more auditors to hear the parties, and examine their vouchers and evidence, and to state the account and make report thereof to such court.

SEC. 77. Before proceeding to hear any evidence in the cause, the auditors shall be severally sworn, in the same manner as referees are herein required to be sworn, and they shall in like manner give notice to the parties of the time and place appointed for their meeting, and they may adjourn from time to time, as may be necessary.

SEC. 78. All the auditors must meet and hear the cause, but a report of a majority of them shall be valid, and such report may be compelled by the court in like manner as in the case of referees.

SEC. 79. Witnesses may be summoned and compelled to attend and testify before the auditors, in the same manner as before referees; and either of the auditors may administer the necessary oath to such witnesses.

SEC. 80. The court may, for any sufficient reason, discharge the auditors and appoint others, and they may also re-commit the report for revision or further examination to the same, or to other auditors.

SEC. 81. The report of the auditors, if there be no legal ob jection to it, may be used by either party as evidence on the trial before the jury, but it may be impeached and disproved by other evidence produced on the trial by either party.

SEC. 82. The court shall award a reasonable compensation to the auditors or referees, as the case may be, which shall be paid by the plaintiff, and shall be taxed in his bill of costs, if he shall be entitled to costs in the suit.

CHAPTER XIX.

Practice in Chancery Cases not Otherwise Provided for.

of order for

demands.

SECTION 1. Whenever a bill shall be filed in chancery, for Publication relief, or for the benefit of the creditors generally of any per- creditors son, or of any estate, or for the benefit of any other persons to exhibit than the plaintiffs, who will come in and contribute to the expense of such suit, every order which may be made thereon requiring such creditors or other persons to exhibit their demands shall in all cases be published once in each week, for at least three weeks, and as much longer as the court may direct, in any newspaper which the court may designate.

of defendant

SEC. 2. In any case where personal service was not had, Appearance except in a case of divorce, if the defendant against whom any not personally decree shall have been made, or his representatives, shall served. afterward appear and petition to be heard, the party so petitioning shall be admitted to answer the plaintiff's bill upon paying or securing to be paid such costs as the court shall adjudge, and the suit shall then proceed in like manner as if such defendant had appeared in due season and no decree had been made.

SEC. 3. The defendant, or his representatives, must so ap- Time for pear within one year after notice in writing of the decree appearance. shall have been given to him or them, and within seven years after the making of the decree, when such notice shall not be given.

non-appear

SEC. 4. If the defendant or his representatives shall not so confirmance appear within one year after such notice shall have been of decree, upon given, and if not given, before the expiration of seven years ance. after the making of the decree, the court shall then, by order, confirm the decree against the defendant, and against all persons claiming under him by virtue of any act subsequent to the commencement of the suit, and may make such further order in the premises as shall be just and reasonable.

premises.

SEC. 5. If the bill shall have been filed to procure the fore- Sale of closure or satisfaction of a mortgage, the court, instead of mortgaged proceeding to a sequestration, may decree a sale of the mortgaged premises, or of such part thereof as may be necessary to discharge the mortgage, and the costs of suit, as in other

cases.

SEC. 6. In the case mentioned in the last preceding section stay of sale. if the defendant, at any time before the sale of the mortgaged premises, shall appear and pay to the plaintiff such costs as the court shall award, the court shall stay the sale, and the same proceedings shall be thereafter had, as if the defendant had been served with process, and had regularly appeared.

affected by appearance.

SEC. 7. No sale and conveyance regularly made under the Sale, when not preceding provisions, upon a bill for the foreclosure and satisfaction of a mortgage, shall be affected or prejudiced by the appearance of the defendant within one year, or the seven

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