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.
was served with process in this case. The evidence substantiated the allegations of the plea. Krum et Jonas, for plaintiff. Collins et Jamison, for defendant. TREAT, J., (orally.) The question presented by demurrer to the evi. dence on the plea of abatement, and the reply thereto, in this case, is one on which, after a great difference of opinion, the various circuit courts of the United States have reached a common conclusion,one in the first circuit, and one in the adjoining circuit, the seventh. Extended commentaries thereon will be found in 21 Amer. Law. Reg. 672. See Atchison v. M01'ris, 11 FED. REP. 582. The proposition is this: When a party to a suit, a non-resident, appears in a state, in ord'er to represent himself with respect to his interests therein involved, or when one as a witness is brought into a state for that purpose, whether, thus coming within such jurisdiction, he is subject to civil service for the institution of suits against him. I am cited to a recent case in Connecticut, followed by a com· mentary in another case by Judge SHIPMAN, a United States district judge. An examination of those cases will show that neither the supreme court of Connecticut nor the United States district judge went to the length contended for in this case. All the United States circuit judges who have passed upon the question of late, as well as dicta by the supreme court of the United States in respect thereto, reach this result, viz.: that where a party in good faith is brought within the jurisdiction of the state or detained therein, being a non· resident, either as party to the snit or as witness in another suit, he is not subject to service. Aud the reason-the main reason-is very potential, so far as our country is concerned. There are many states, stretching from Maine to Oregon, and a man who is required to go from one to the other, either as a witness or as a party to a suit, should not be pursued by suit while abroad, instead of being sued at his own residence; otherwise, everyone, as is stated in many of these opinions, would avoid, as far as possible, being subjected, thousands of miles away, to suits of this character. The result is, the demurrer to the evidence is overruled. Judgment on the plea of abatement in favor of defendant, which abates the case.
NEW ORLEANS INS. 00.
INS. CO. 1
(Circuit Court E. D. Mis8ouri.
FIRE INSURANCE-NoTICE TO BROKER.
April 11, 1885.)
Where a policy of insurance procured through a broker contained the follow· ing conditions, viz. : "If any broker or other person than the assured have procured the policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the a88ur'ed, and not of this company, in any transac· tion relating to the insurance. This insurance may be terminated at any time by reqnest of the assured, or by the company, on giving notice to that effect;" held, that notice from the company to the broker who procured the policy, of an election to terminate the insurance, was not notice to the assured. A verdict and judgment thereon will 1I0t be set aside upon the p;round that the defendant has been prevented, by a mistake, and without fauH, from being represented at the trial and making his defense, when the defense which lie sets up in alIhlavits in support of his motion to set aside is entirely new, and not disclosed by the original pleadings.
PRACTICE-MoTION '1'0 SET ASIDE VERDICT-NEW DEFE)lSE.
Motion to Set Aside the Verdict and Judgment. Suit upon a fire insurance policy taken out by the assured through a broker. The policy contained among its conditions the following:
"If any broker or other person than the assured have procured this policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the assured, and not of this company, in any transaction relating to the insurance. 'fhis insurance may be terminated at any time by request of the assured, or by the company, on giving notice to that effect."
The answer contains a general denial, and states that the defend· ant had terminated the insurance by notice to the plaintiff according to the terms of the policy, before any loss occurred. At the trial it appeared that the defendant had atttempted to terminate the insurance before the fire, by giving notice to the broker who procured the policy, but that the plaintiff had received no actual notice of the defendant's desire to terminate the insurance until after the fire occurred. The defendant was not represented at the trial. The verdict was for the plaintiff. The defendant moved to set aside the verdict, and filed affidavits tending to show that the attorney's absence had been caused by a mistake, and that it had a defense not set up in its answer. G. M. Stewart, for plaintiff. Eleneious Smith and E. H. Gary, for defendant. TREAT, J., (orally.) In the case of Kehler v. New Orleans Ins. Go. there is a motion to set aside verdict and judgment. The original defense to the case was that, under the terms of the policy, it could be canceled on notice given, and that said notice was given before the loss. On the testimony submitted, it appeared the notice was not given. I supposed the contention would be that the broker who negotiated the insurance must be treated as if he were the plaintiff