No. 249.

Affidavit in Support of Motion to Set Aside a Verdict Reached by Improper Method (1).

[Caption.]

D. J. McDonald, being duly sworn, in addition to the affidavit heretofore filed in support of his motion to set aside the verdict of the jury, says:

That one of the jurors who tried this case stated to this affiant, since the trial, that when the jury retired to the jury room for the consideration of the case, that the foreman, Dr. Gillespie, proposed to the jury that each juror write down on a piece of paper the amount he thought the plaintiffs were entitled to recover and that the amounts be added together and then divided by twelve and let the result be the amount the jury should return as their verdict; that the foreman stated that he had done this in a number of cases wherein he was juror; that this method was fair and thereupon the proposition of the foreman was agreed to by the jury and each juror wrote the amount he thought the plaintiffs were entitled to recover upon a slip of paper and put it in a hat; that thereupon the slips were taken out of the hat and the amounts called out and as the amounts were called it was observed that three of the jurors had written down the amount of $5,000, as being the amount in their opinion the plaintiff was entitled to recover; that the jury thereupon objected stating that this could not be done, whereupon the jurors who had voted for $5,000 each, or some of them, stated that they and each of them had as much right to vote as much above $4,000, the amount sued for, as the other jurors had to vote for amounts less than the amount sued for; that the various amounts were finally added up and divided by twelve and there was dissatisfaction; that it was at least three quarters of an hour after the calculation had been made before all the jury would consent to stand by the bargain they had made and return the amount figured out, or quotient verdict, as their verdict in this case; that said juror stated to this affiant that he would never have consented to go

into the agreement had he known or thought that any of the jury would have put down an amount over $4,000; that after the calculation had been made and the amount found to be so high, there was quite a discussion about the matter and certain jurors who voted in favor of large amounts insisted that the jury should be bound by the agreement and not try to kick out of the proposition.

That another juror had stated since the trial, to two gentlemen of character, that the jury agreed upon the manner of arriving at their verdict in the manner hereinabove stated; that said juror stated that he voted for $5,000, and did all he could for the plaintiffs, and that when the amount was figured out, some of the jurors objected and tried to get out of it, but that he insisted upon the verdict.

That the jurors refuse to file an affidavit in this case but state that they are willing to testify to the facts hereinbefore alleged, provided the court thinks it proper for them to do so. D. J. MCDONALD.

Sworn to and subscribed before me this the 15th day of January, 1912. A. R., Deputy Clerk.

(1) Granting a new trial for the misconduct of the jury is in the discretion of the court. Buckeye Powder Co. v. DuPont Co., 223 Fed. 881.

The testimony of a juror may not be received to prove misconduct of himself or his colleagues, and the conformity act does not apply in such case. McDonald v. Pless, 238 U. S. 264, 59 L. Ed. 1300.

No. 250.

Extract from Charge, on Weighing of Testimony.

When you come to consider the evidence of the witnesses, you are the exclusive judges of the weight of the evidence and the credibility of the witnesses and the facts proven. You should take into consideration, of course, the interest any witness has in the result of the litigation; you should take into

consideration his manner and demeanor while testifying on the stand; his apparent fairness or lack of fairness; his knowledge of the situation, as shown by the testimony, or his lack of knowledge, and all the other facts and circumstances which tend to give weight to or detract from his testimony. If, in any matter, you believe any witness has wilfully testified falsely concerning any material matter, then it is your privilege to disregard the entire testimony of any such witness, or you can give it credence where you think it is entitled to belief or is corroborated, and lay aside the remainder.

The President of the United States of America to the Marshal

You are commanded to take [here describe the property to be taken] from the possession of the defendant, C. D., and deliver the same to the plaintiff, A. B., upon A. B. giving the undertaking required by law.

You will make due return of this order on or before the Tuesday of, 1894.

[Add teste according to the court issuing the writ.]

(1) A proceeding in the nature of a replevin proceeding is authorized by the copyright act, 35 Stat. L., 1075, and the earlier statute on the same subject, R. S. U. S., Sec. 4965. Section 25 of the present copyright act deals with infringements and is amended in 37 Stat. L. 489; this together with the rules prescribed by the supreme court for its enforcement, provides generally that when in an infringement pro

ceding an affidavit and bond have been filed with the clerk and approved, the clerk shall issue a writ to the marshal directing him to seize and hold the copies mentioned in the affidavit, and the marshal shall seize them and serve a copy of the affidavit, bond and writ upon the defendant.

No. 252.

Return of Marshal on above Writ of Replevin.

1894. I have this day executed the foregoing order of delivery, by taking the property therein mentioned: ascertaining by the oaths of E. F. and G. H., two responsible persons, the value thereof, which is dollars; delivering the same to plaintiff, A. B. having executed to the defendant a written undertaking in the sum of $, with S. L. and A.

Know all men by these presents, that we, the A. B. Company, a corporation organized under the laws of the state of

and doing business in the county of

district of

as principal and S. R. and W. B. as sureties, both of the city of, are held and firmly bound unto R. P., United States marshal, for the in the sum of dollars, lawful money to be paid to the said marshal, or his assigns, for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors and administrators jointly and

severally, firmly by these presents. Dated the day of

—, A. D.

Sealed with our seals,

The condition of this obligation is such that if the above bounden, the A. B. Company, shall prosecute to effect a certain suit in replevin which it has commenced in the District Court of the United States for the district of

division, against C. D. and the E. F. Company, defendants, for taking and unjustly detaining the following described goods and chattels, to wit: [Here specify property.]

And if the said defendants shall recover judgment against it in the said action, then if the said A. B. Company shall return the same property, if return thereof be adjudged, and shall pay to the defendants all such sums of money as may be recovered by the said defendants against it in the said action, then the above obligation to be void, otherwise to remain in full force and virtue.

[Seal.]

A. B. Company,

S. R. and W. B., the sureties in the foregoing bond, being duly sworn, each for himself, says that he is worth the penal sum in said bond named, over and above all debts, liabilities and exemption.

Subscribed and sworn to before me this

A. D. ——

[Seal.]

S. R.,

W. B.

day of

Oath of Appraisers of Goods Taken on Writ of Replevin. [Caption.]

You do solemnly swear that you will, according to your best judgment make a true appraisement of the goods and