MILLIKIN V. ROSS.
(Circuit Court, K. D. Lauisiana. June, 1881.)
After two concurring the court will not grant another new trial, unless the jury have manifestly disregarded the law as given them by the court.
On Rule for New Trial. P. Hornor and F. Baker, for plaintiff. Kennard, Howe Prentiss, for defendant. BILLINGS, D. J.. This case is an application for 8 new and third trial, and to set aside the second of two concurring verdicts. In the matter of granting new trials and setting aside verdicts, the circuit courts are govemed by the statutes 'of congress, (1 St: 83, § 17,) and "where there has been a trial by jury" are rostricted, to "reasons for which new trials have usually been granted in the courts of law." The question, therefore, is one of usage in the commonlaw courts. One verdict has already been set aside as being against the weight of testimony. The question now is whether a second'verdict, upon substantially the same testimony shall be set aside. There is, I think, a well-settled rule that in s.uoh a case the court will defer to a seoond verdiot. In Winnertonv. Marquis ofStafford, 3 Taunt. 233, Lord Mallsfield held that, although the judge who last tried the cause thought the .evidence against the verdict preponderated, nevertheless, when the evidenoe was conflicting, the court ought to refuse to grant a second new trial; Lord Mansfield remarking that "it could never be right to make no weight of two verdicts in order to take a chance ofa third." See, also, to the same effect, Fowler AEtna Fire Ins. 7 Wend: 270. There undoubtedly are cases when it would bathe duty of the court to set aside any number of verdicts. But those are oases in which juries manifestly disregard: the rules of law .as. given to them by the court. But this is not such a case. The question here is one of fact, viz., the good faith or reality of a claimed transfer of a promissory note. When two successive v61'diets are oontradiCtory, and the last is unsatisfactory to thecourt, a new trial.may be ordered. Parker v. Ansel, 2 W. Bl. 963. It may also be done after two -cuning verdicts. Goodwin v. Gibbons, 4 Burr. 2108. But this is seldom done. v. Udall, 2 Salk. 649; Chambers v. Robinson, 2 ,Btl-ange, 692. .. ;; .. The new trial is refused. !".
HATCR 'V. INDIANAPOLIS & SPRINGFIELD
R. CO. and others.
(Circuit Court, D. Indiana. January 21, 1882.)
]. MASTERS IN CHANCERy-REPORTS OF, AND EXCEPTIONS THERETO.
'Masters are usually employed in taking accounts and making computations, and in making inquiries and reporting facts. In such references it was usual for the masters to prepare drafts of their reports before argument, and argument was heard by the masters only on objections to the drafts. In such cases, manifestly, parties were entitled to an inspection of the drafts, and to be heard on their objections thereto.
But if a reference is lllfide embracing questions of law and fact, and after hearing the testimony, and the arguments of counsel, the master prepares a report of his findings, there is no good reason for observing the formalities of . the old practice in SUbmitting the report to the parties for hearing thereon before the master.
It is not the practice in this district, nor in this circuit, for the master, after having heard full arg-ument, to submit a draft of his report to the parties for a hearing thereon upon objections thereto. When a case has been fully argued in the first instance the legal right of the unsuccessful party to make objections before the master to the draft of his report, and argue the same, is not recognized in practice. 4. SAME-RULES 77 AND 83 OF THE SO?REME COURT. The rules of the supreme court for conducting references before masters provide a simple and expeditious procedure, and were obviously intended to dispense with the old formalities incident to the settling, etc., of the master's report. Vide rules 77 and 83. These rules estahlish a procedure in themselves and reference to the practice of the high court of chancery in England, as it existed in 1842, for the formalities attending the settlement, or making of masters' reports, and the entering of exceptions thereto, is unnecessary.
In Chancery. Edwin H. Abbott and C. D. Page, for complainant. Baker, Hood d; Hendricks, Roache d; Lamme, and James IIf. Johnson, for respondents. GRESHAM, D. J. The bill in this case alleged that the railroad company was indebted to the complainant in a large sum for labor and materials furnished in the construction of a part of the respondents' road; that certain stockholders, who were made defendants, had never paid their stock subscriptions; and that the company was insolvent and the road had been abandoned. The court was asked to ascertain and decree the amount due from the company to the complainant; also for a decree against the individual stockholders, requiring them to pay into court a sum sufficient to satisfy the com· plainant's demand and costs of suit.