Pless & Winbourne, attorneys at law, brought suit in the superior court of McDowell county, North Carolina, against McDonald to recover $4,000 alleged to be due them for legal services. The case was removed to the then circuit court of the United States for the western district of North Carolina. There was a trial in which the jury returned a verdict for $2,916 in favor of Pless & Winbourne. The defendant McDonald moved to set aside the verdict on the ground that when the jury retired the foreman suggested that each juror should write down what he thought the plaintiffs were entitled to recover, that the aggregate of these amounts should be divided by 12, and that the quotient should be the verdict to be returned to the court. To this suggestion all assented.
The motion further averred that when the figures were read out it was found that one juror was in favor of giving plaintiffs nothing, eight named sums ranging from $500 to $4,000, and three put down $5,000. A part of the jury objected to using $5,000 as one of the factors, inasmuch as the plaintiffs were only suing for $4,000. But the three insisted that they had as much right to name a sum above $4,000 as the others had to vote for an amount less than that set out in the declaration. The various amounts were then added up and divided by 12. But by reason of including the three items of $5,000, the quotient was so much larger than had been expected that much dissatisfaction with the result was expressed by some of the jury. Others, however, insisted on standing by the bargain, and the protesting jurors finally yielded to the argument that they were bound by the previous agreement, and the quotient verdict was rendered accordingly.
The defendant further alleged in his motion that the jurors refused to file an affidavit, but stated that they were willing to testify to the facts alleged, provided the court thought it proper that they should do so. At the hearing of the motion one of the jurors was sworn as a witness, but the court refused to allow him to testify on the ground that a juror was incompetent to impeach his own verdict. That ruling was affirmed by the court of appeals. (124 C. C. A. 131, 206 Fed. 263.) The case was then brought here by writ of error.
On the argument here it was suggested that it was not necessary to consider the question involved as an original proposition, since the decision of the Federal court was in accordance with the rule in North Carolina (Purcell v. Southern R. Co. 119 N. C. 739, 26 S. E. 161), and therefore binding under Rev. Stat. § 914, Comp. Stat. 1913, § 1537, which requires that the practice, pleadings and forms and modes of procedure in the Federal courts shall conform as near as may be to those existing in the state within which such Federal courts are held. But neither in letter nor in spirit does the conformity act apply to the power of the court to inquire into the conduct of jurors who had been summoned to perform a duty in the administration of justice, and who, for the time being, were officers of the court. The conduct of parties, witnesses and counsel in a case, as well the conduct of the jurors and officers of the court, may be of such a character as not only to defeat the rights of litigants, but it may directly affect the administration of public justice. In the very nature of things the courts of each jurisdiction must each be in a position to adopt and enforce their own self-preserving rules. Nudd v. Burrows, 91 U.S. 427 (4), 441, 23 L. ed. 286, 290; Indianapolis & St. L. R. Co. v. Horst, 93 U.S. 291, 300, 23 L. ed. 898, 901, 7 Am. Neg. Cas. 331; W. B. Grimes Dry Goods Co. v. Malcolm, 164 U.S. 483, 490, 41 L. ed. 524, 527, 17 Sup. Ct. Rep. 158; Lincoln v. Power, 151 U.S. 436, 442, 38 L. ed. 224, 227, 14 Sup. Ct. Rep. 387; Burgess v. Seligman, 107 U.S. 20, 33, 27 L. ed. 359, 365, 2 Sup. Ct. Rep. 10; Liverpool & L. & G. Ins. Co. v. N. & M. Friedman Co. 66 C. C. A. 543, 133 Fed. 716.
