newspapers during the trial of a fraud order against the defendant to a criminal prosecution.67 70 A new trial was not ordered because one of the jurors read a newspaper report of the case which was not prejudicial to the unsuccessful party; 68 nor because a verdict was obtained by a division by twelve of the sum of each juror's estimate of the damages, in the absence of an antecedent agreement to bring in a quotient verdict; 69 nor because some of the jurors before it was admitted in evidence examined a map hung in the courtroom; nor because a juror owned a share of stock in the defendant and failed to say so through inadvertence when they were asked collectively whether they were directly or indirectly interested in the company; 71 nor because of an affidavit that a juror had been discharged for incompetence by a corporation under the same management as defendant when he had testified that he left the employ of his own volition and it did not appear that he had been informed of the reason for his discharge; 72 nor because a juror disobeyed the order of the court forbidding the separation of the jury and went to his office where he remained about twenty minutes, no circumstance being shown to justify an inference of possible injury to the rights of the unsuccessful party.73 Misconduct or interference is not 67 Harrison v. U. S., C. C. A., 200 Fed. 66. But not a report in the newspaper of the commitment of one of the defendants for misconduct in attempting to corrupt the jury when there was no proof that any juror had read the same and all had been warned not to read reports of the case. U. S. v. Rice, 195 Fed. 171. The refusal of the court to grant a continuance because of the publication, that morning, of an article in a newspaper prejudicial to the defense, is no ground for a new trial, when the jurors selected have testified that they did not read the same. U. S. v. Francis, 144 Fed. 520, 42; U. S. v. Francis, 144 Fed. 520; U. S. v. Marrin, 159 Fed. 767. usually a ground for a new trial when known by the injured party before the verdict but not called to the court's attention until the verdict has been announced.74 A new trial may be ordered when the court has improperly coerced the jury; 75 provided that an exception to such judicial misconduct was duly taken.76 There is no impropriety in directing a jury to reconsider the case after they have announced their inability to agree.77 A new trial may also be granted because of newly discovered evidence.78 Such evidence must be material not merely cumulative.79 It must be so strong as to raise a reasonable presumption that the result of the second trial would be different from the first.80 It has been said that evidence that is merely contradictory of evidence offered by the successful party upon the former trial is insufficient.81 The evidence must have been discovered since the former trial.82 Where a physical opportunity to obtain the new witnesses 83 and to inquire of them concerning the matters of issue 84 existed before 85 or during the former trial 86 and no satisfactory excuse, other than lack of time,87 for not doing so is presented; the motion will be denied. As a general rule, on a motion for a new trial affidavits of jurors may be received to support but not to impeach the verdict.88 "A juryman may testify as to any facts bearing upon 74 Bowers v. U. S., C. C. A., 244 Fed. 641. 75 Peterson v. U. S., C. C. A., 213 Fed. 920. See infra, § 527c. 76 Campbell v. U. S., C. C. A., 221 Fed. 286. 77 Ibid. 78 Usher v. Scranton Ry. Co., 132 Fed. 405. 79 Stewart v. Boston & M. R. R., 229 Fed. 862; Shelton v. Southern Ry. Co., 255 Fed. 182. 80 Ibid. 81 Ibid. 82 Skerman v. Philadelphia & R. Ry. Co., 225 Fed. 85; Tomljanovich v. Victor-American Fuel Co., 230 Fed. 467. 83 Skerman v. Philadelphia & R. Ry. Co., 225 Fed. 851. 84 Tomljanovich v. Victor-American Fuel Co., 230 Fed. 467. 85 Skerman v. Philadelphia & R. Ry. Co., 225 Fed. 85. 86 Tomljanovich v. Victor-American Fuel Co., 230 Fed. 467. 87 Skerman v. Philadelphia & R. Ry. Co., 225 Fed. 85. 88 Hyman v. Eames, 41 Fed. 676, 677; Chandler v. Thompson, 30 Fed. 38, 45; Glaspell v. N. Pac. R. Co., 43 Fed. 903, 909; Fuller v. Fletcher, 44 Fed. 34, 39; Biggs v. Barry, 2 Curtis, 259; Ewer's Adm'r v. National Imp. Co., 63 Fed. 562; Consol. Ice Mach. Co. v. Trenton the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind." 89 Affidavits of jurors stating that a certain paper was not shown to nor read by them,90 and that reading a newspaper report did not influence their verdict,91 were admitted to support a verdict. Affidavits of jurors stating that they were not influenced by erroneous instructions as to the measure of damages; 92 that in the course of their deliberation references were made to the facts improperly referred to upon the trial; that the defendant had taken out insurance against liability for accidents and would not be required to pay any damages awarded;"' 93 that during the deliberations of the jury, one of them procured from the bailiff a copy of the statutes; 94 and that affidavits of jurors explaining the grounds of their verdict will not be considered.95 Affidavits of jurors showing statements by a juror in the jury room as to his incompetency,96 as to his knowledge of the value of property,97 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 98 were admitted. to impeach the verdict. The right to a new trial may be waived.99 Such a waiver is made by proceeding in a cause after a party has discovered the facts which are the foundation of his motion without immediately calling the court's attention to them, asking relief and Hygeian Ice Co., 57 Fed. 898; Shelton v. Southern Ry. Co. 255 Fed. 182. Such affidavits were considered in Mattox v. U. S., 146 U. S. 141, 151, 13 Sup. Ct. 50, 36 L. ed. 917; Stevenson v. Tennessee Copper Co., 193 Fed. 268. And other cases cited infra. 89 Mr. Justice Gray in Woodward v. Leavitt, 107 Mass. 453, 9 Am. Rep. 49; approved in Clyde Mattox v. U. S., 146 U. S. 140, 149, 36 L. ed. 917. 90 Fuller v. Fletcher, 44 Fed. 34, 39. 91 U. S. v. Reid, 12 How. 361, 366, 13 L. ed. 1023, 1025. 92 Glaspell v. N. Pac. R. Co., 43 Fed. 903, 909. 93 Ruckle v. Am. Car & Foundry Co., 194 Fed. 459. 94 Colt v. U. S., C. C. A., 190 Fed. 305. 95 Chandler v. Thompson, 30 Fed. 38, 45. 96 Hyman v. Eames, 41 Fed. 676, 677. 97 Stevenson v. Tennessee Copper Co., 193 Fed. 268. 98 Clyde Mattox v. U. S., 146 U. S. 140, 36 L. ed. 917; U. S. v. Rice, 195 Fed. 171. 99 U. S. v. Marrin, 159 Fed. 767; Nelson v. Wood, C. C. A., 210 Fed. 18. taking an exception to a denial thereof.100 It was so held when a party proceeded in the trial without a request for the with drawal of a juror, after clear information that prejudicial newspaper articles had been read by jurors.101 But where, after information to a party of prejudice on behalf of one of the jurors, his counsel stated that fact to the court and to counsel for the other side, in the absence of the jury, and action thereupon was postponed by the direction of the court; it was held that he had not waived his right to a new trial.102 Lack of due diligence in discovering the facts was also a ground for the denial of such a motion after a delay of several months after the verdict.103 An order granting 104 or denying 105 a motion for a new trial cannot be reviewed upon a writ of error thereto; but it might be reviewed upon a writ of error to the final judgment 106 and 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.107 So, it was held, may be a refusal to consider a motion for a new trial, because the verdict was against the weight of evidence; 108 and where uncontradicted affidavits, which the inferior court refused to consider, proved that a new trial must be granted, one was ordered by the Circuit Court of Appeals.109 So may be a plainly prejudicial error concerning the disqualification of a juror.110 100 U. S. v. Marrin, 159 Fed. 767. 101 Ibid. 102 Wilson v. Clement, 126 Fed. 808. 103 Nelson v. Wood, C. C. A., 210 Fed. 18. 104 Farrell v. First Nat. Bank of Philadelphia, C. C. A., 254 Fed. 801. 105 Missouri Pac. Ry. Co. v. Chicago & A. R. Co., 132 U. S. 191, 33 L. ed. 309; Beaupré v. Noyes, 138 U. S. 397, 34 L. ed. 991; Linn v. U. S., C. C. A., 251 Fed. 476; Spokane & I. E. R. Co. v. Campbell, 217 Fed. 518; Chicago, M. & St. P. Ry. Co. v. Chamberlain, C. C. A., 253 Fed. 429. But see McIn tyre v. Modern Woodmen of America, C. C. A., 200 Fed. 1; Odell Mfg. Co. v. Tibbetts, C. C. A., 212 Fed. 652. 106 Farrell v. First Nat. Bank of Philadelphia, C. C. A., 254 Fed. 801. 107 Clyde Mattox v. U. S., 146 U. S. 140, 147, 36 L. ed. 917, 920. But see Smith v. U. S., C. C. A., 231 Fed. 25. See Stewart v. Boston & M. R. R., 229 Fed. 862, 863. 108 Felton v. Spiro, C. C. A., 78 Fed. 576. 109 Ogden v. U. S., 112 Fed. 523. 110 Memphis St. Ry. Co. v. Illinois Cent. R. Co., C. C. A., 242 Fed. 617. § 479. Bills of exceptions. A bill of exceptions is a written paper authenticated by the signature of the trial judge which contains a statement of the errors committed upon a trial and in the course of other proceedings in a cause, not apparent upon the record, which the plaintiff in error wishes to bring to the attention of the court of review. It was not allowed by the common law but was authorized by the Statute of Westminster, enacted in 1385.2 The entries on the judge's minutes upon the trial, which usually state the exceptions then taken and allowed, unless signed by him, are not bills of exceptions, but evidence of the party's rights. The entry by the clerk of exceptions into the record * or into the journal 5 does not make them reviewable. The bill of exceptions is no part of the record. It cannot be considered when the judgment is attacked collaterally. A bill of exceptions properly authenticated cannot be impeached by evidence outside the record, although if indisputably incorrect the judge might be compelled by mandamus to correct it.9 Where the bill contained all the evidence as to authority of an agent of the defendant it was held that a recital therein that he was superintendent and general manager in charge of the defend § 479. 1 See Linn v. U. S., C. C. A., 251 Fed. 476. 2 Buessel v. U. S., C. C. A., 258 Fed. 811, 815. 3 13 Edw. 1, ch. 31, English, St. at L. Vol. I, p. 99: "When one that is impleaded before any of the Justices doth allege an Exception, praying that the Justices will allow it, which if they will not allow it, if he that alleges the Exception do write the same Exception, and require that the Justices will put to their Seals for a Witness the Justices shall so do; and if one will not, another of the Company shall. (2) And if the King, upon Complaint made of the Justices, cause the Record to come before him, and the same Exception be not found in the Roll, and the Plaintiff shew the Exception written, with the Seal of a Justice put to, the 4 Young v. Martin, 8 Wall. 354, 5 Chicago Great Western R. Co. v. Le Valley, C. C. A., 233 Fed. 384. 6 U. S. v. Taylor, 147 U. S. 695, 7 Re Haskell, 52 Fed. 795, 798. 9 See supra, § 457. 10 re |