1 except depositions, may be taken to the jury room, also jurors' notes.2 Papers not in evidence,3 judges' minutes, maps,5 books of law 6 or science may not be taken to the jury room. The presence of improper papers or books in the jury room will not vitiate a verdict if it appear that they did not influence the same.8 Statutes-Civil.-Alabama Code 1886, § 2757; California Code Civil Proc., §612; Colorado Code Civil Proc. 1887, 191; Delaware Rev. Code 1874, p. 649, § 26; Illinois, 2 Stan. & C., Ili. Stat. 1885. p. 1817, §§ 55, 56; Iowa Rev. Code 1887, § 2797; Minnesota Stat. 1878, ch. 66, § 231; New Jersey Rev. Stat. 1877, p. 876, § 182; Oregon, 1 Hill's Laws 1887, § 204; Texas Stat. 1888, art. 1303. Statutes-Criminal.-Arkansas Dig. Stat. 1874, § 1942;_ California Penal Code, § 1137; Iowa Rev. Code 1886, §§ 4452-3; Kentucky, "All papers and other things received in evidence." Bullett Ky. Crim. Code, § 248; Minnesota Stat. 1874, ch. 114, § 15; Nevada Comp. L., Nev. 1873, § 2017; New York, "Any paper or article in evidence, but only on consent of the defendant and counsel for the people." N. Y. Code Cr. Proc., Laws 1881, ch. 442; 4 R. S. 1882, § 425; Oregon, same as civil cases; Texas Code Crim. Proc. 1879, art. 684. 1. Depositions are withheld because it would be unequal that while the jury were not permitted to call the witnesses before them, who had been examined in court, they should take with them the depositions of other witnesses not so examined. Alexander v. Jameson, 5 Binn. (Pa.) 238. See also Udderzook v. Com., 76 Pa. 340; Welch v. Ins. Co., 23 W. Va. 288; Shields v. Guffey, 9 La. 322. Contra, Shuley v. State, 29 Ark. 17. In several States depositions are excluded from the jury room by statute. Civil.-Cal. Code Civil Proc., § 622; Colo. Code Civil Proc. 1887, § 191; Del. Rev. Code 1874, p. 649, § 26; 2 Stan. & C., Ill. Stat. 1885, p. 1817, § 5556; Minn. Stat. 1878, ch. 66, § 231; 1 Hill's Laws Oreg. 1887, § 204; Stat. Tex. 1888, art. 1303; Comp. L. Nev. 1872, § 1230. Criminal. Cal. Penal Code, § 1137; Rev. Code Iowa 1887, §§ 4452-3; Comp. L. Nev. 1873, 2017; 1 Hill's Laws Oreg. 1887, § 204 Depositions may go to the jury room in Iowa when all the testimony is in writing. Rev. Code Iowa 1887, § 2797. See also Hairgrove v. Mellington, S Kan. 480. And it would seem they may go in all cases in Alabama. Code 18S6, § 2757 2. Cowles v. Hayes, 71 N. Car. 231. Statutes Civil.-Cal. Code Civil Proc., §612;Colo. Code Civil Proc. 1887, § 191; Minn. Stat. 1878, ch. 66, § 231; Comp. L. Nev. 1873, § 1230; 1 Hill's Laws Oreg. 1887. § 204. Statutes-Criminal.--Cal. Penal Code, § 1137; Rev. Code Iowa 1886, §§ 4552-3; Minn. Stat. 1874, ch. 114, § 15; Comp. L. Nev. 1873, § 2017; 4 R. S. N. Y. 1882, § 426; 1 Hill's L. Oreg. 1887, § 204. Contra, Nichols v. State, 65 Ind. 512; Long v. State, 95 Ind. 481. 3. Alger V. Thompson, I Allen (Mass.) 453; Munde v. Lambre, 125 Mass. 367; State v. Lantz, 23 Kan. 728; Heffron v. Gallupe, 55 Me. 563; Toohy v. Lewis, 78 Ind. 474; McLeod v. Ry. Co., 71 Iowa 138. 4. Neil v. Abel, 24 Wend. (N. Y.) 185; Mitchell v. Carter, 21 N. Y. Supr. Ct. 448; Steadwell v. Morris, 61 Ga. 97. 5. In a road case. State v. Hartmann, 46 Wis. 248; State v. Lantz, 23 Kan. 728. 6. Merril v. Nary, 10 Allen (Mass.) 416; State v. Smith, 6 R. I. 33; State v. Harris, 34 La. An. 118; State v. Tanner, 38 La. An. 307. In criminal cases the rule is not always strictly applied. Loew v. State, 60 Wis. 559; Dak. Ter. v. Taylor, 1 Dak. Ter. 479; State v. Hopper, 71 Mo. 425. See Thompson on Trials, § 2586. 7. For this amounts to expert testimony. State v. Gilleck, 10 Iowa 98. The defence in a case was moral insanity and insanity from intoxication. The jury read newspaper accounts of the Guiteau trial and the testimony of an expert for the government, expressing disbelief in moral insanity. A new trial resulted. Moon v. State, 68 Ga. 687. 8. As when not read by jury. Wilkins v. Maddrey, 67 Ga. 766; State v. Harris, 34 La. An. 118; State v. Tanner, 38 La. An. 307; Schmertz v. John 10. Illegal Methods of Arriving at a Verdict.-Chance1 and quotient 2 verdicts will always be set aside. A verdict obtained through coercion or restraint of the jury may be set aside.3 11. Misconduct, How Shown.-Jurors are presumed to have conducted themselves properly until the contrary is shown. 5 Misconduct of jurors, unless it occurs in open court, cannot be proved by their affidavits, nor by the affidavits of third son, 72 Ga. 472. See also Winslow v. Campbell, 46 Vt. 746; State v. Tindall, 10 Rich. (S. Car.) L. 212; Humes v. Ry. Co., 71 Iowa 138; Perry v. Cottingham, 63 Iowa 41; Bulen,v. Granger, 58 Mich. 274; Wilds v. Bogan, 57 Ind. 453; Shields v. Gaffey, 9 Iowa 322. 1. 3 Bl. Com. 376; Mitchell v. Ehle, 10 Wend. (N. Y.) 595; Levy v. Brannan, 39 Cal. 485; Polhemus v. Heinman, 50 Cal. 438; Cal. Code Civil Proc., § 657; Ark. Dig. Stat. 1874, § 1977; Fain v. Goodwin, 35 Ark. 109; Tex. Code Cr. Proc. 1879, art. 777, §§ 3-8; Cowperthwaite v. Jones, 2 Dall. (U. S.) 55: 2. A quotient verdict occurs where the jurors agree to add together their estimates and divide the sum by 12, and to abide by the result thus arrived at as their verdict. This is illegal. See Joyce v. State, 7 Baxt. (Tenn.) 87; Haught v. Hoyt, 50 Conn. 583. The test is whether they agreed to abide by the result. Johnson v. Hubbard, 22 Kan. 277. For if they did not the verdict is good. Leverett v. State, 3 Tex. App. 213; Tinkle v. Dunmorant, 16 Lea (Tenn.) 503; Roy v. Goings, 112 Ill. 656; Miller v. Ry. Co., 5 Mo. App. 471. In an action for damage to an animal, it was held that the jury must not average the values sworn to by the different witnesses until the ordinary rules of weighing testimony as to their intelligence, opportunities for knowledge, etc., be resorted to. Harvey v. Boswell, 65 Ga. 550. 3.The deliberations of a jury are not to be interfered with whilst they are considering the law and the testimony, which alone must control their verdict. They are by no means to be influenced, by the fear of a week's confinement, to alarm them into an agreement." The bailiff had told them that if unable to agree they would be kept a week. Obear v. Gray, 68 Ga. 182. Where the judge told the jury, "You must agree upon a verdict; I cannot dis charge you until you agree upon a verdict," the verdict was set aside for constraint. Slater v. Mead, 53 How. Pr. (N. Y.) 57. 4. People v. Williams, 24 Cal. 31; Parshall v. Ry. Co., 35 Fed. Rep. 649; Matlico v. State, 18 Ga. 343. 5. Knight v. Freeport, 13 Mass. 218. 6. "The court must derive their knowledge from some other source, such as from some person having seen the transaction through a window, or by some such other means." LD. MANSFIELD, in Vasie v. Delwal, 1 T. R. 11. "This ordinarily cannot be positively shown, it can only be reached by such facts as may be gathered in a legal way from what others than the jurors can testify to." Obear v. Gray, 68 Ga. 182. A quotient verdict cannot be so shown. St. Clair v. Ry. Co., 29 Mo. App. 76; Ry. Co. v. Patton, 9 W. Va. 648. See also State v. Pike, 65 Me. 111; Fredericks v. Judah, 73 Cal. 604; Messenger v. Bank, 6 Daly (N. Y.) 190; Reynolds v. Tompkins, 23 W. Va. 229; Gale v. Ry. Co.. 53 How. Pr. (N. Y.) 385; Stanley v. Sutherland, 54 Ind 399; Walker v. Kenniston, 34 N. H. 257; State v. Nelson, 32 La. Än. 842; Territory v. Taylor, 1 Dak. Ter. 479; Hannum v. Belcheston, 19 Pick. (Mass.) 311; Brown v. Cole, 45 Iowa 601; Lucas v. Cannon, 13 Bush (Ky.) 650. Exceptions Chance Verdict.-By statutes, in Arkansas, California and Texas, affidavits of jurors are admissible to show that a verdict was the result of lot or chance. California Code Civ. Proc., § 657; Polhemus v. Heinman. 50 Cal. 438. A quotient_verdict is not within this statute. Boyce v. Stage Co., 25 Cal. 460. Arkansas Dig. Stat. 1874, § 1977; Fain v. Goodwin, 35 Ark. 109. Texas Code Crim. Proc., 1879, art. 777. §§ 3-8. Quotient Verdict.-Shown by affi davits of jurors. In Tennessee, Harvey v. Jones. 3 Humph. (Tenn.) 157; Crab tree In 7. State, 3 Sneed (Tenn.) 302; Ry. Co. v. Winters, 85 Tenn. 240. parties as to admissions made by jurors.1 Alleged misconduct of jurors may be disproved by their affidavits.2 Misconduct of bailiff in charge may be proved by jurors' affidavits.3 Affidavits of third parties as to misconduct of jurors must be positive, showing the ground of belief.4 12. Effect of Misconduct Waiver.-Irregularities in the custody of and misconduct by the jury if gross and prejudicial, render the verdict liable to be set aside. Misconduct by the jury, if not gross or prejudicial, renders the jury liable to punishment, but will not affect the verdict.6 Misconduct is more closely scrutinized and more nearly affects the verdict in criminal than in civil cases. Iowa, Fuller v. Ry. Co., 31 Iowa 211. Kansas, Johnson v. Husband, 22 Kan. 277. Texas Code Crim. Proc., 1879, art. 777, 993-8; Hunter v. State, 8 Tex. App. 75. Exceptions in General.-Intoxication of juror so shown in Perry v Batley, 12 Kan. 539. Evidential statements by jurors so shown in Wade v. Ordway, 57 Tenn. 229; Anshicks v. State, 6 Tex. App. 524. See also Johnson v. Husband, 22 Kan. 277; State v. Clark, 34 Kan. 289; Wright v. Tel. Co., 20 Iowa 195; Donston v. State,6 Humph.(Tenn.) 275; Booby v. State, 4 Yerg. (Tenn.) III. But see Garuty v. Brazell, 34 Iowa 100. Embracery may be shown by affidavits of jurors. Ritchie v. Holbrooke, 7 L. & R. (Pa.) 458; Hawkins v. La. Print Co., 29 La. An. 134; Huston v. Vail, 51 Ind. 299; Taylor v. Everett, 2 How. Pr. (N. Y.) 23; Thomas v. Chapman, 45 Barb. (N. Y.) 18. 1. Pleasant v. Heard, 15 Ark. 403; Allison v. State, 45 Ill. 37; State v. Beatty, 30 La. An. 1266; Gale v. Ry. Co. 53 How. Pr. 385; Smith v. Smith, 50 N. H. 212. 2. Gilleland v. State, 44 Tex. 356; Jones v. State, 89 Ind. 82; Wilkins v. Maddrey, 67 Ga. 766; People v. Hunt, 59 Cal. 430; State v. Cartwright, 20 W. Va. 32; Hix v. Drury, 5 Pick. (Mass.) 296; Obear v. Gray, 68 Ga. 182. 3. Reins v. People, 30 Ill. 256. 4. Ackey v. State, 64 Ind. 56; Mergentheim v. State, 107 Ind. 567; Cummings v. Crawford, 88 Ill. 312; People v. Williams, 24 Cal. 31. highest number should get it, referring, as he supposed, to the verdict." In this case the fact that counter affidavits of the jury as to other charges of misconduct said nothing as to this one, of deciding by lot, also influenced the court. See also McMurdock v. Kemberton, 23 Mo. App. 523. 5. Intoxicating Liquor. Carter v. Glass Co., 85 Ind. 180; Ry. Co. v. Porter, 32 Ohio St. 328. Communications. Collier v. State, 20 Ark. 36; Clements v. Spear, 56 Vt. 401. Reading Newspapers.-U. S. v. Reid, 12 How. 361. See also authorities collected under each kind of irregularity and misconduct; also Morrow v. Commissioners, 21 Kan. 484; Koehler v. Chany, 23 Minn. 325; Trafton v. Pitts, 73 Me. 408; Bainbridge v. State, 30 Ohio 264; State v. Cucuel, 2 Vroom (N. J.) 249; Brucker v. State, 16 Wis. 333; Sanders v. People, 124 Ill. 218; State v. Gould, 90 N. Car. 65; State v. Brown, 7 Oreg. 186; Smith v. Lovejoy, 62 Ga. 372; Wilkins v. Maddrey, 67 Ga. 766; State v. Livingston, 64 Iowa 560; Wise v. Bosley, 32 Iowa 34; Riley v. State, 95 Ind. 446; Borland v. Barrett, 76 Va. 128; Gardner v. Kemble, 58 N. H. 202; State v. Harris, 34 La. An. 118; McGuire v. State, 10 Tex. App. 125; Hoover v. State, 5 Baxt. (Tenn.) 672; Brown v. McConnell, 1 Bibb (Ky.) 265; Burns v. State, 35 Ark. 118. 6. State v. Degonia, 69 Mo. 485; Evans v. Foss, 49 N. H. 490; Brown v. McConnell, 1 Bibb (Ky.) 265; Sanders v. State, 2 Iowa 230; Cook v. Walters, 4 Iowa 72; Horton v. Horton, 2 Cow. (N. Y.) 589. In Obear v. Gray, 68 Ga. 182, a verdict was set aside on the affidavit of a bailiff that "he heard fragments of talk about numbers. Whoever drew the 484. 7. Morrow v. Commissioners, 21 Kan. The effect of misconduct by the jury on a verdict is lost if it is not complained of by the injured party as soon as he knows of it.1 A party participating in misconduct cannot afterwards complain of it.2 XI. VERDICT See CRIMINAL PROCEDURE; VERDICTS. 1. General Verdict.-See VERDICTS. 2. Special Verdict.-See VERDICTS. 3. Delivery of the Verdict.-See CRIMINAL PROCEDURE; VER DICTS. 4. Setting Aside the Verdict.See VERDICTS. XII. FEES. The compensation of jurors is fixed by statute in the different States.3 XIII. JUDGMENT.-See CRIMINAL PROCEDURE; JUDGMENT. XIV. ERROR AND APPEAL.-See APPEAL; BILL OF EXCEPTIONS; CRIMINAL PROCEDURE; ERROR, WRIT OF; NEW TRIAL. 1. "A party cannot be permitted to lie by after having knowledge of a defect of this kind and speculate upon the result, and complain only when the verdict becomes unsatisfactory to him." Selleck v. Turnpike Co., 13 Conn. 453; Onok v. Ins. Co., 21 Pick. (Mass.) 457; Hubert v. Shaw, 11 Mich. 118; Bulliner v. People, 95 Ill. 394; Rowe v. Canney, 139 Mass. 41; State v. Nichols, 29 Minn. 357; Harrington v. State, 76 Ind. 112; Patton v. Mfg. Co., 11 R. I. 188; Berry v. De Witt, 27 Fed. Rep. 723; Scott v. Waldeck, 12 Neb. 5; Polin v. State, 14 Neb. 540; Lee v. McLeod, 15 Neb. 158; Valiente v. Bryan, 66 How. Pr. (N. Y.) 302. The rule has even been applied to bribery. Tinkle v. Dunivant, 16 Lea (Tenn.) 503. But in Peiffer v. Commonwealth, 15 Pa. St. 468, it was held that separation in a capital case vitiates the verdict even though the prisoner consent. See also State v. Hornsby, 32 La. An. 1268, and Thompson on Trials, § 2613. 2. One cannot take advantage of his own wrong. U. S. v. Salentine, 8 Biss. (U. S.) 404. 3. Cal. act of May 1st, 1851. Before this act, by the act of 1850, no fees were allowed to dissenting voters. See Mills v. Dunlap, 3 Cal. 94. Nevada Stat. 1864-5, 259 and 1871, 56. See, for their construction, Gillett v. Sharp, 7 Nev. 245. Under the act of November 29th, 1869 (Nevada), a juror is entitled to compensation for every day's attendance upon the court, whether actually empanelled or not, except in certain cases when employed in hearing criminal trials. See Thornburg v. Hermann, I Nev. 473. Pennsylvania, Purd. Bright Dig., tit. Fees, p. 48. In Commissioners v. Hall, 7 W.290, the county was decided to be liable for the expenses of boarding and lodging a jury empanelled and kept together in a capital case by order of the court. In Ex parte Lopez, 7 Rich. (S. Car.) 123, it was held that there was no statute entitling the jurors of the city court of Charleston to be paid by the State. The jurors in civil cases, attending the circuit court of the United States for the district of Pennsylvania, held entitled to $1.25 each for each day's attendance, in Ex parte Lewis, 4 Čranch (U. S.) 433 In the United States courts, if a person is summoned as a juror and as a witness on the part of the government at the same term, he is entitled to compensation in both capacities, upon making the usual affidavit of attendance and upon his setting forth such facts by petition, and their admission by the marshal, a rule absolute will be entered directing the marshal to pay the amount. Edwards v. Bond, 5 McLean 300. Payment of the jury fee at the time the demand is made is not necessary to make the demand valid. Odello v. Reynolds, 40 Mich. 21. Authorities. The following authorities have been used in the preparation of this article: Proffatt on Jury Trial; Forsyth on Trial by Jury; Thompson on Trials; Thompson & Merriam on Juries; Bishop on Criminal Law; Rapalje on Criminal Procedure. JUS. A Latin word, used in the sense of law, rights.1 JUST.— Used as an adjective in several phrases in the sense of that which is right, fair and equitable. For examples see the notes.2 1. In holding that relief would lie in equity to have an agreement set aside which had been entered into by both parties under a mutual mistake as to the title to the subject matter of the agreement, LORD WESTBURY used the following language: "It is said, 'Ignorantia juris haud excusat, but in that maxim the word "jus" is used in the sense of denoting general law, the ordinary law of the country. But when the word "jus" is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact, it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that that agreement is liable to be set aside as having proceeded upon a common mistake." Cooper v. Phibbs, L. R., 2 H. L. 149, 170. such a defect as would authorize the district court to require the plaintiff to amend the affidavit so as to make the statement more formal and definite. Probably no one will contend that the affidavit should follow the exact language of the statute, but when it dif fers from the statute without any ap parent reason therefor, courts will be justified in requiring that the reason be made obvious, or that the affidavit be so amended as to conform to the statute. The statute requires that the affidavit shall show, 'first, the nature of the plain. tiff's claim; second, that it is just; third, the amount which the affiant believes the plaintiff ought to recover; and fourth, the existence of some one of the grounds for an attachment (§ 200. Comp. L. 155), which grounds are enumerated in another section of the statutes. 1, Laws of 1866, 182. The words just and justly do not always 2. Just Claim.-An action was mean just and justly in a moral sense, brought in which an attachment issued but they not unfrequently, in their conon an affidavit, and the defendant nection with other words in a sentence, moved to discharge the attachment on bear a very different signification. It the ground that the affidavit did not suffi- is evident, however, that the word 'just' ciently show that the plaintiff's claims in the statute means just in a moral were just as required by law. The sense; and from its isolation, being court sustained the motion, VAL- made a separate subdivision of the secENTINE, J., saying, "The court below tion, it is intended to mean 'morally decides that the affidavit does not suffi- just' in the most emphatic terms. ciently show that the plaintiff's claims claim must be morally just, as well as are just (Sub. 2, § 200, Comp. L. 155), legally just, in order to entitle a party All that the affidavit states upon this to an attachment. If the claim is subject, as to claims numbered 1 and 2, morally unjust, but notwithstanding the is as follows: It states that the plain- owner thereof thinks he can legally retiff ought justly to recover the cover the same by an action at law, amounts thereof;' and near the close of provided he can obtain an attachment, the affidavit it states generally as to all and not otherwise, it is but natural, or the claims, six in number, 'that the sev- at least the temptation is great, for him eral sums claimed by the plaintiff are to try to make a compromise between justly due. That this is manifestly an his conscience and the rigid language informal way of stating the matter will of this austere statute, and so frame the be readily admitted, but whether this language of his affidavit as not to do informality renders the affidavit insuffi- any great violence to either his concient is not so obvious. It is probably science or the statute. He may think not such a defect as would authorize that it is easier to swear that the claim the court to arbitrarily dissolve the at- is justly due than to swear that it is tachment without first giving the plain morally just without any reference as tiff ample opportunity to amend her to whether it is due or not, and where affidavit. It is even probable that the there are six different claims, as in this defect is not so fatal, that this court case, some of which may be just and would hold the affidavit insuffi- some of them unjust, he may think that cient if the district court had held it that it is easier to swear that the sev sufficient. We think, however, it is eral sums claimed by the plaintiff are The |