854
FEDERAL REPORTER.
an examiner, will prove conflicting and uncertain, affords no foundation for present action by the court. Another of the reasons assigned for granting feigned issues, viz., because "the court is so sensible of the deficiency of trial by written evidence," (2 Daniell, Ch. Pro 631,) also fails in this case, for it is quite apparent that on a jury trial the testimony would be for the most part in writing, owing to the circumstance that the transaction in question occurred in Texas. For these reasons the motion to award feigned issues in the cal() at this time is denied.
WOOSTER v. CLARK and others. (Oircuit Oourt, S. D. New York. August 29, I. TEsTIMONy-RULE
69.
Equity rule 69 is imperative that no testimony taken after time shall he allowed to be read at the hearing.
On Motion to Strike out Testimony. BLATCHFORD, C. J. The motion to strike out the testimony taken on the part of the defendants must be granted. Rule 69 is imperative, that no testimony taken after time shall be allowed to be read at the hearing. The plaintiff duly objected on the record to the taking of what was taken, on the ground that it was taken after time, and such objection has never been waived. Moreover, the defendants, after that, specially moved for time to take proofs, and the motion was denied. The proof of the sale of a binder is sufficient. It is plain that it infringes claims 2, 4, and 5. The granting of the reissue to the plaintiff is sufficient proof of his title to sue. There must be a decree for the plaintiff.
MILLIKIN V. ROSS.
855
MILLIKEN
v. Ross.
(Circuit Court, K. D. Lauisiana. June, 1881.) NEW TRUL'.
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. !". j
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