FEDERAL REPORTER. 1
(Oircuit Court, E. D. New York. February 24,1885.)
VERDICT-POWER OF COURT TO ConnECT MIS'fAKE IN.
'Where a jury, in an action for services, returned a. verdict for plaintiff for $3,500; and two days after, while counsel for both were the court directed the jury to be recalled, and they all, on bemg asked If that was their verdict, answered that it was not,-that their verdict was for $3,500, with interest,-lleld, that the court had power to cause the mistake to he corrected, and that plaintiff should }lave judgment for $3,500, and mterest.
Motion for Judgment on Verdict. P. W. OstrandM', for plaintiff. Deforest ti; Weeks, for defendant. WHEELER, .J. This is an action to recover for personal services rendered while the plaintiff was a director and treasurer of the defendant. The jury was directed to return a verdict for the plaintiff for such services ashe rendered, if any, outside the scope of his duties as:director and treasurer, at the special request of the president and the rest of the board of directors, and that if they found for tile plaintiff they might allow interest from the time when the services were completed. Late in the day they returned a verdict for the plaintiff for $3,500, and the court was immediately adjourned to the next day. During the next day a statement wits made to the court that the jury intended to give a verdict for $3,500, with interest. On the morning of the next day after that, and on notice to defendant's counsel to be present, and while the counsel for both parties were present, the court directed the jury to be recalled to their places, and that the verdict, as recorded, be read to them, and that they be asked if that was their verdict. Tbis was done, and the foreman answered that it was not; that their verdict was for $3,500, with interest. Tbey were directed to compute the interest and agree upon the amount, which they did; and answered that it was $2,038.20, making $5,538.20, and that their verdict was for the plaintiff for that amount, which was ordered to be recorded, and the jury, being interrogated separately, all said that that was,their verdict. At the same time an affidavit of all the jurors was presented and filed, stating that the verdict agreed npon was for the plaintiff for $3,500, with interest. The plaintiff now moves for judgment on the verdict for the full amount. The defendant objects to judgment on the verdict for any more than $3,500, on the ground that interest was not recovemble, and because it was not within the power of the court to allow the verdict to be varied after it had been received and recorded. As the services were rendered on special request, and to be paid for, the pay was due when they were performed, and after that time was detained by the defendant against the right of the plaintiff to have it. Under
lReported by R. D. & Wyllys Benedict, Esqs" of the New York bar.
S}fALL V. MONTGOMERY.
these cIrcumstances it ought to hear interest. People v. Gasherie, 9 Johns. 71; Wood v. Robbins, 11 Mass. 504; Burdett v. Estey, 19 Blatchf. 1; S. C. 3 FED. REP. 566. The power of the court to cause the verdict to be corrected would seem to be ample, according to the law of the state of New York, and the practice of its oourts, as settled by its highest court. In Dalrymple v. Williams, 63 N. Y. 361, the jury returned a verdict against two, when the verdiot agreed upon was against one, and in favor of the other, and the verdiot was reoorded and the jury separated; afterwards, on the same day, on the affidavit of all the jurors, the verdiot was oorreoted and the judgment entered upon it. This course waEl approved. In Gogan v. Ebden, 1 Burr. 383, where the issue was as to two rights of way under which the defendant justified, the jury found for the defendant as to one, and for the plaintiff as to the other, but returned a verdict for the defendant as to both and separated. This verdict was oorrected on the affidavit of the jurors. In this oase there is no suspioion' of any unfair conduct on the part of the jurors, or anyone. It was an honest mistake, which, if not corrected, would prevent the finding of the jury. as it actually was from being carried out. The oorreotion is not an impeachment of the verdict by the jurors in any sense. It upholds the real verdiot, and prevents miscarriage in its delivery into court. The verdict as first recorded was not the real verdict of the jury. If it could not be corrected, it should be set aside. Neither party has moved for that. Judgment on verdict for full amount.
SMALL V. MONTGOMERy.1
(Circuit Oourt, E. D. J[i88ouri.
JURISDICTION-SERVICE ON NON-RESIDENT ATTENDING AS WITNESS IN ANOTHER CASE.
Where a non-resident, who has come into the district to attend the trial of a Cll.qe in which he is plaintiff, is detained within the jurisdiction of this court as a witness in another suit, he is not subject to civil service for the institution of suits against him while so detained.
Plea in Abatement and Demurrer to the Evidence. The plea that the defendant is a resident of Tennessee, and came into this district to attend the trial of a case in which he was plaintiff, and a necessary witness on his own behalf; that while attending the trial of said case he was served with a subpama in another case then pending in the St. Louis circuit court, and while attending as a witness in the latter case, in obedience to said Bubpcena,
by Benj. F. Rex, Esq., of the St. Louis bar.