testify as to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind." It has been held: that affidavits of jurors stating that a certain paper was not shown to nor read by them,18 and that reading a newspaper report did not influence their verdict,19 may be admitted to support a verdict; that affidavits of jurors stating that they were not influenced by erroneous instructions as to the measure of damages will not be considered; 20 that affidavits of jurors explaining the grounds of their verdict will not be considered; 21 that affidavits of jurors showing statements by a juror in the jury room as to his incompetency," and showing the presence of an officer and his statements and the reading of a newspaper report and comments on the case during the deliberations of the jury 23 may be admitted to impeach the verdict. A motion for a new trial may be denied upon condition that the plaintiff remit a portion of the verdict. In one case, when the jury were sent out, the court said that no provision was made by law for furnishing them meals, and asked whether both parties would contribute to the expense of any food that might be needed by the jury during their deliberations; whereupon the defendant's counsel declined to pay any part of such expense, and the meals of the jury were provided at the plaintiff's expense; it was held that this was a ground for a new trial after a verdict for the plaintiff.25 A new trial was granted because pending the trial three jurymen visited the plaintiff's place of business and were there given twenty-five cigars; 26 because a juror privately 17 Mr. Justice Gray in Woodward v. Leavitt, 107 Mass. 453; approved in Clyde Mattox v. U. S., 146 U. S. 140, 149. 39. by a division of the sum of each juror's estimate of the damages, a verdict thus obtained should not be set aside. Consol. Ice Mach. Co. v. 18 Fuller v. Fletcher, 44 Fed. R. 34, Trenton Hygeian Ice Co., 57 Fed. R. 19 U. S. v. Reid, 12 How. 361, 366. 20 Glaspell v. N. Pac. R. Co., 43 Fed. R. 903, 909. 21 Chandler v. Thompson, 30 Fed. R. 38, 45. Affidavits of jurors to show that a verdict was a quotient verdict were not considered; and it was held that in the absence of an antecedent agreement to be bound 898. 22 Hyman v. Eames, 41 Fed. R. 676, 677. 23 Clyde Mattox v. U. S., 146 U. S. 140. 24 Chils v. Gronlund, 41 Fed. R. 145; s. C., 41 Fed. R. 505. 25 Johnson v. Hobart, 45 Fed. R. 542. 26 Platt v. Threadgill, 80 Fed. R. 192. measured a place described in the testimony; 27 and because of articles upon the issues published in newspapers which were read by the jurors.28 As a general rule when the evidence is conflicting a new trial will not be ordered, although the court thinks that the jury should have brought in a different verdict.29 "Non-residence of a juror is not of itself a sufficient reason to compel the grant of a new trial. It is a question of sound discretion whether, under all the facts connected with the case, it should be done." 30 An order granting or denying a motion for a new trial cannot be reviewed upon a writ of error; 31 but a refusal to consider affidavits offered in support of a motion for a new trial may be a ground for a reversal when an exception was duly taken to their exclusion.32 § 377. Bills of exceptions.-The time and manner of taking exceptions and filing bills of exceptions are also matters as to which the Federal courts act independently of the State practice. The Revised Statutes provide that "a bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause, without any seal of court or judge being annexed thereto. And in case the judge before whom the cause has heretofore been or may hereafter be tried is, by reason of death, sickness, or other disability, unable to hear and pass upon the motion for a new trial and allow and sign said bill of exceptions, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such cause has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exceptions, shall pass upon 27 Ewer's Adm'r v. National Imp. & A. R. Co., 132 U. S. 191; Beaupré Co., 63 Fed. R. 562. v. Noyes, 138 U. S. 397; infra, § 494, notes 87, 88, 89. 28 Meyer v. Cadwalader, 49 Fed. R. 32; Morse v. Montana Ore P. Co., 105 Fed. R. 337. 29 Plummer v. Granite Mountain Min. Co., 55 Fed. R. 755, 756. 32 Clyde Mattox v. U. S., 146 U. S. 140, 147. § 377. 1 Chateaugay Ore & Iron Co., 128 U. S. 544; Fishburn v. Chicago, M. 30 Fisher v. Yoder, 53 Fed. R. 565, & St. P. Ry. Co., 137 U. S. 60; Richper Buffington, J. mond & D. R. Co. v. McGee (C. C. A.), 31 Missouri Pac. Ry. Co. v. Chicago 50 Fed. R. 906. said motion and allow and sign such bill of exceptions; and his ruling upon such motion and allowance and signing of such bill of exceptions shall be as valid as if such ruling and allowance and signing of such bill of exceptions had been made by the judge before whom such cause was tried; but in case such judge is satisfied that, owing to the fact that he did not preside at the trial, or for any other cause, he cannot fairly pass upon said motion, and allow and sign said bill of exceptions, then he may in his discretion grant a new trial to the party moving therefor." 2 If the bill of exceptions is neither signed nor sealed, it will be disregarded upon a writ of error. An exception must be noted when taken, but, in the absence of a rule or order restricting or enlarging the time, may be signed at any time during the term.5 A bill of exceptions must be signed at the term at which the judgment was rendered, not necessarily at the term at which the trial was had. A bill of exceptions filed subsequently to the term at which judgment is entered will be disregarded by the court of review, even although an order of the trial court has permitted it to be filed nunc pro tunc, unless before the time expired it was enlarged by order or consent, except in districts where a special local rule or 2U. S. R. S., § 953, as amended by 31 St. at L. 270. Before this amendment the only remedy was a new trial where the death or illness of the trial judge prevented his signing the bill of exceptions. Hume v. Bowie, 148 U. S. 245, 253. 3 Mussina v. Cavazos, 6 Wall. 355, 363; Origet v. U. S., 125 U. S. 240. 7 Morse v. Anderson, 150 U. S. 156; Miller v. Morgan (C. C. A.), 67 Fed. R. 82. 8 Muller v. Ehlers, 91 U. S. 249; Whalen v. Sheridan, 10 Fed. R. 661; Herbert v. Butler, 14 Blatchf. 357. But see Harrison v. German American F. Ins. Co. (C. C. A.), 90 Fed. R. 758; So. Pac. Co. v. Hamilton (C. C. A.), 54 Fed. R. 468, 474. 9 Davis v. Patrick, 122 U. S. 138; Chateaugay Ore & Iron Co., 128 U. S. 544; Richmond & D. R. Co. v. McGee (C. C. A.), 50 Fed. R. 906; Yellow P. L. Co. v. Chapman (C. C. A.), 74 Fed. R. 444; U. S. v. Jones, 149 U. S. 262; Ward v. Cochran, 150 U. S. 597. An 4 Hunnicutt v. Peyton, 102 U. S. 333, 354. Although the bill of exceptions states that exceptions to a charge were taken when it was given, they are bad when the bill discloses that they were not taken till afterwards. MacDonald v. U. S., 63 Fed. Ꭱ. 426. "Hunnicutt v. Peyton, 102 U. S. 333, indorsement on a bill of exceptions, 354. Walton v. U. S., 9 Wheat. 651; Muller v. Ehlers, 91 U. S. 249; Preble v. Bates, 40 Fed. R. 745. "We agree upon the above and foregoing bill of exceptions," signed by counsel during an extension of time granted by an ex parte vacation practice prevails. 10 A bill of exceptions if otherwise in time may be signed after a writ of error has been sued out. If the time prescribed by the rules is enlarged by order, it is the safer practice to date the bill of exceptions at a day within the time as originally limited, and to insert in the order a provision that the bill of exceptions be signed, sealed, and filed, nunc pro tunc.12 It has been held that, even after a writ of error, a bill of exceptions duly allowed may be amended by the trial court,13 but not by the court of review," and that a new exception cannot be added by amendment after the time to file a bill has expired. Exceptions contained in the minutes of the trial included in the transcript but not signed by the judge will not be considered by the appellate court.16 A bill of exceptions which states that the parties respectively introduced evidence as shown in an exhibit annexed and marked A., which exhibit consists of the stenographer's report of the trial, containing oral exceptions then taken, is not a good bill of exceptions, and may be disregarded by the appellate court. A paper in the record, entitled "case and exceptions," is a order, is a waiver of objections to the order of enlargement of the time. Gulf, C. & S. F. Ry. Co. v. Jackson, 64 Fed. R. 79. An order extending the time for the preparation and filing of the transcript does not extend the time for signing and filing the bill of exceptions. Reliable L. & B. Co. v. Stahl (C. C. A.), 102 Fed. R. 590. The bill itself should show any excuse for the delay. Ibid. An extension granted during the vacation before the term succeeding the judgment was held to be insufficient. M., K. & T. Ry. Co. v. Russell, 60 Fed. R. 501. 10 Chateaugay Ore & Iron Co., 128 U. S. 544; Woods v. Lindvall, 48 Fed. R. 73; Morse v. Anderson, 150 U. S. 156. For the practice in the First Circuit, see N. Y. & N. E. R. Co. v. Hyde (C. C. A.), 56 Fed. R. 188. It has been held in the Seventh Circuit that the pendency of a motion for a new trial or to set aside the judg ment extends the time to have the bill of exceptions signed and filed, sufficient bill of and that the court when denying the motion may extend the time even at a subsequent term. Tullis v. L. E. & W. R. Co. (C. C. A.), 105 Fed. R. 554. 11 Hunnicutt v. Peyton, 102 U. S. 333, 357; Davis v. Patrick, 122 U. S. 138. 12 Hunnicutt v. Peyton, 102 U. S. 333, 357; Walton v. U. S., 9 Wheat. 651. 13 Whiting v. Equitable L. A. Soc., 60 Fed. R. 197. 14 Stimpson v. Westchester R. Co., 3 How. 553; Case v. Hall (C. C. A.), 94 Fed. R. 300. 15 Sutherland v. Round (C. C. A.), 57 Fed. R. 467. 16 Pomeroy's Lessee v. State Bank of Indiana, 1 Wall. 592, 598: Thompson v. Riggs, 5 Wall. 633; Young v. Martin, 8 Wall. 354; Insurance Co. v. Lanier, 95 U. S. 171; Hanna v. Maas, 122 U. S. 24, 26. 17 Hanna v. Maas, 122 U. S. 24. See Marion Phosphate Co. v. Cummer (C. C. A.), 60 Fed. R. 873. exceptions, if it has all the requisites of a bill, except the name.'s Theoretically, exhibits marked upon the trial are left with the clerk, although in practice they are usually returned to and kept by the party who offers them.19 It has been held that they are a part of the record and must be included in the transcript by the clerk.20 But the Supreme Court has held that when a paper, which is to constitute a part of the bill of exceptions, is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions; otherwise it may be disregarded." The court refused to consider an affidavit in support of a motion for a continuance,22 and affidavits in support of a motion for a new trial, which were included in the transcript but not referred to in the bill of exceptions.24 The bill of exceptions should not contain the evidence in the language used by the witnesses, but it must contain enough of the evidence to show the materiality of the exceptions.25 And where separate bills were signed, it was held that the court could not consider evidence stated in one of them when deciding an exception taken in another bill upon the same writ of error.26 It is the safer practice to include in the bill of exceptions a statement that it contains all the evidence affecting the matter to which the exceptions relate. Otherwise, the court of review will not presume that it contains all the evidence and may, on that account, decline to review a refusal to direct a verdict.28 Where the bill of exceptions states that a party "gave evidence tending to show" certain facts, it was 18 Herbert v. Butler, 97 Fed. R. 319. 19 Hobbs v. Nat. Bank of Commerce (C. C. A.), 93 Fed. R. 615. 20 Ibid. 21 Leftwitch v. Lecanu, 4 Wall. 187. 22 Evans v. Stettnisch, 149 U. S. 605. 23 Stewart v. Wyoming C. R. Co., 128 U. S. 383. 24 Hickman v. Jones, 9 Wall. 197. See Marion Phosphate Co. v. Cummer (C. C. A.), 60 Fed. R. 873. 25 Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 606; Atchison, T. & S. F. R. 26 Co. v. Myers (C. C. A.), 63 Fed. R. 793; 26 S. W. Va. Imp. Co. v. Frari (C. C. A.), 58 Fed. R. 171. 27 Ibid.; Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 606; U. S. v. Wingate, 44 Fed. R. 129; U. S. v. Norris, 44 Fed. R. 740; Kingory v. U. S., 44 Fed. R. 669. 28 Atchison, T. & S. F. R. Co. v. Myers (C. C. A.), 63 Fed. R. 793. |