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ment, an error in the admission of evidence not affecting such finding is harmless. 14

It has been held that when the parties consent that the case be referred to the judge or some one else as referee, the only question presented by the writ of error is whether there is any error of law in the judgment upon the facts as found by the referee.15 Where the case was tried before a judge under an

14 Reed v. Stapp (C. C. A.), 52 Fed. St. P. Ry. Co. v. Clark, 178 U. S. 353, R. 641; Searcy County v. Thompson 364. An order of reference in ac(C. C. A.), 66 Fed. R. 92; Rhodes v. cordance with this rule may be enU. S. Nat. Bank (C. C. A.), 66 Fed. R. tered after the filing of the referee's 512; City of Key West v. Baer (C. C. report nunc pro tunc, in accordance A.), 65 Fed. R. 440; D. & C. F. Co. v. with a stipulation made prior to the Gottschalk, 66 Fed. R. 609. But see reference. Robinson v. Mut. Ben. L. Citizens' Bank v. Farwell (C. C. A.), I. Co., 16 Blatchf. 194, 200. After 63 Fed. R. 117.

judgment, no motion for a new trial 18 Paine v. Central Vt. R. Co., 118 under this rule can be made. Naefie U. S. 152, 158; Boogher v. Insurance V. Cheesebrough, 14 Blatchf. 313. Co., 103 U. S. 90. See Dundee M. & The court of error has thus reviewed Tr. Co. v. Hughes, 124 U. S. 157. A the decision of the lower court upon rule of the Circuit Court of the a motion to strike out a notice of a United States for the Northern, East- termination of the reference, which ern and Southern Districts of New was decided after the report was York provides that: “In actions at filed, and also the decision of a molaw, a consent to a reference of the tion to set aside the report because whole issue must likewise contain a of such a notice. Parker v. Ogdensprovision that judgment shall not be burg, L. & L. C. R. Co. (C. C. A.), 79 entered until after ten days' notice Fed. R. 817. It was held that a stipof the filing of the report of the ulation to refer a case to a special referee, and of the judgment pro- master, and that the rights of the posed to be entered thereon. After parties shall be the same as though a reference, at any time before the the case were one within the terms entry of judgment, either party may of the State statute, neither enlarges move for a new trial upon a case or nor contracts the rights of the parexceptions, and if such motion he ties with respect to a review by the denied, the decision of the motion Circuit Court of Appeals of a judgand the questions involved in it may ment on a trial without a jury, Shipbe entered on the record, as if it had man v. Ohio Coal Exchange (C. C. been a ruling made upon a trial by A.), 70 Fed. R. 652; and that an oral the judge without a jury, and ex- consent in open court to an order of cepted to in like manner. When a reference, made pursuant to a State motion for a new trial is intended to statute (Nebraska), will not enable be made, the court may extend the the Circuit Court of Appeals in the time for entering judgment, upon Eighth Circuit to review the action the application of the moving party, of the Circuit Court on exceptions and may stay all other proceedings to the referee's report, where there until the decision of the motion.” 13 is no bill of exceptions making that Blatchf. 568, 569. Cf. Chicago, M. & report, or the evidence upon which

order providing, by consent, that it be so tried, and that if it should appear to the judge that there were questions of fact, the same be subsequently submitted to a jury, it was held that the Supreme Court could not consider on appeal rulings of the judge upon the trial.16 A judgment upon an agreed statement of facts presents nothing but a question of law, which may be reviewed on a writ of error. The findings on agreed facts must consist of facts only, and not contain a recapitulation of the evidence.18 Where there is no finding of facts, but merely a stipulation that certain testimony in other suits may be referred to and relied upon by either of the parties, the appellate court has no jurisdiction to determine the questions of law thereon arising. 19 The findings cannot be both general and special.20 A special finding is controlled by a general finding for the defendant in error on all the issues; and no error can then be assigned thereto. An order made by the court, after hearing a case without a jury taking such case under advisement, does not work a discontinuance of the suit, though a provision is added that the case is to be decided in vacation.

There is no provision of law authorizing the review by writ of error of any errors committed on the trial of an action in a District Court tried by a judge by consent without a jury.23

A statement of facts agreed by the parties, that is a case stated, in an action at law, waives all questions of pleading, or of form of action, which might have been cured by amendit was founded, a part of the record. dence not inconsistent with the stipuDietz v. Lymer (C. C. A.), 63 Fed. R. lation. Burnham v. No. Chicago St. 758 See also Board of Com’rs of Ry. Co. (C. C. A.), 88 Fed. R. 627. Hamilton County v. Sherwood (C. C. 18 Raimond v. Terrebonne Parish, A.), 64 Fed. R. 103.

132 U. S. 192. 16 Andes v. Slauson, 130 U. S. 435. 19 Glenn v. Fant, 134 U. S. 398; Dav

17 Bond v. Dustin, 112 U. S. 604, 607; enport v. Paris, 136 U. S. 580. Supervisors v. Kennicott, 103 U. S. 20 Meath v. Mississippi Levee Com'rs, 554; U. S. v. Eliason, 16 Pet. 291; Burr 109 U. S. 268; British Q. Min. Co. v. v. Des Moines R. & Nav, Co., 1 Wall. Baker S. Min. Co., 139 U. S. 222. 99; Campbell v. Boyreau, 21 How. 223, 21 Meath v. Mississippi Levee Com’rs, 226. But see Glenn v. Fant, 134 U.S. 109 U. S. 268; British Q. Min. Co. v. 398. When a judgment upon agreed Baker S. Min. Co., 139 U. S. 222. facts is rerersed because the facts 22 Abraham v. Levy (C. C. A.), 72 stipulated were evidential only,a new Fed. R. 124. trial may be ordered with liberty to 23 Rogers v. U. S., 141 U. S. 548. each party to offer additional evi

ment; but it cannot enable a court of law to assume the jurisdiction of a court of equity.24 For example, in a State where the remedy of a mortgagee against one who has covenanted with a mortgagor to pay the mortgage is in equity, a case stated cannot authorize him to sue at law.25

No State statute 2 or constitutional or provision regulating the manner of the trial,28 or applications for postponements or continuances,29 or form of a verdict,' or providing for the trial of a class of cases before a judge without a jury,31 compulsory references in a special class of cases, such as an action on an account,32 or limiting the powers of the judge to comment on the facts in his charge to the jury,or directing that such charge be in writing, 94 has any influence upon the practice in the Federal courts. But it has been said that the sufficiency and scope of pleadings, and the form and effect of verdicts, in actions at law, are matters in which the Circuit Courts of the United States are governed by the practice of the courts of the State in which they are held.3 The State practice in the withdrawal of jurors may in a proper case be followed.36

The trial judge has no power to order a compulsory nonsuit,97 but may dismiss the complaint if the State practice per

33

24 Willard v. Wood, 135 U. S. 309, 31 Klever v. Seawall, 65 Fed. R. 393. 814.

32 Howe Mach. Co. v. Edwards, 15 25 Willard v. Wood, 135 U. S. 309. Blatchf. 402; U. S. v. Rathbone, 2

26 Nudd v. Burrows, 91 U. S. 426; Paine, 578; Sulzer v. Watson, 39 Fed. Indianapolis & St. L R. Co. v. Horst, R. 414. 93 U. S. 291.

Vicksburg & M. R. Co. v. Put27 St. Louis, I. M. & S. Ry. Co. v. nam, 118 U. S. 545; St. Louis, I. M. & Vickers, 122 U. S. 360.

S. Ry. Co. v. Vickers, 122 U. S. 360; 28 Nudd v. Burrows, 91 U. S. 426; U. S. v. Phila. & R. R. Co., 123 U. S. Indianapolis & St. L. R. Co. v. Horst, 113; Rucker v. Wheeler, 127 U. S. 85, 93 U. S. 291; Vicksburg & M. R. Co. 93; Lovejoy v. U. S., 128 U. S. 171. v. Putnam, 118 U. S. 545; St. Louis, 34 Nudd v. Burrows, 91 U. S. 426. I. M. & S. Ry. Co. v. Vickers, 122 U. S. 35 Gray, J., in Glenn v. Sumner, 132 860.

U. S. 152, 156. See Bond v. Dustin, 29 Texas & P. Ry. Co. v. Nelson, 50 112 U. S. 604; and $ 360. Fed. R. 814

36 Silsby v. Foote, 14 How. 218, 220. 30 Indianapolis & St. L R. Co. v. 37 Elmore v. Grymes, 1 Pet. 469; Horst, 93 U. S. 291; Abbott v. Curtis D'Wolf v. Rabaud, 1 Pet. 476; Crane & Co. Mfg. Co., 25 Fed. R. 402; U. S. v. Morris, 6 Pet. 598; Silsby v. Foote, Mut. Acc. Ass'n v. Barry, 131 U. S. 14 How. 218; Castle v. Bullard, 23 100. For example, a direction that How. 172. It has been held that, exemplary damages must be sepa- when the plaintiff fails to appear rately assessed. Times Pub. Co. v. upon the trial, the proper practice is Carlisle (C. C. A.), 94 Fed. R. 762. to im panel a jury and direct a ver

mits that to be done.38 The plaintiff may consent to a nonsuit; 39 but, according to a recent decision, after the commencement of the trial only with the leave of the court, unless a State statute gives him an absolute right to do so. The trial judge may direct a verdict for either party in a case where the evidence is such as to make it proper to set aside a verdict in favor of the other. Upon a motion to direct a verdict, the grounds of the motion should be stated.43 It has been said to be the better practice for the court to hear the argument and decide the motion in the absence of the jury; but the presence of the jury at comments upon the evidence, when made by the judge, is no ground for a new trial.“ Such a motion cannot be granted if made before all the evidence of both parties is closed.45 Where, after such a motion made at the close of the plaintiff's case has been denied, the defendant offers evidence on bis own behalf, any error in denying the motion is cured.46 A verdict can only be directed when no recovery could be had by the party against whom the verdict is given, upon any view which could properly be taken of the facts.? The sufficiency of the evidence to justify the verdict will not be reviewed on writ of error unless a motion for directing a verdict was made by the plaintiff in error at the conclusion of the evidence.48 The judge may also comment upon the facts, provided that, when

dict for the defendant. Patting v. 489; Hodges v. Kimball (C. C. A.), 104
Spring & C. Co., 93 Fed. R. 98; Fed. R. 745.
Schultz v. Mut. L Ins. Co., U. S.C. C. 43 N. Y. & T. S. S. Co. v. Anderson
S. D. N. Y., 1881, per Shipman, J. (C. C. A.), 50 Fed. R. 462; U.S. v. Bank

38 Central Transp. Co. v. Pullman's of Metropolis, 15 Pet. 377. P. C. Co., 139 U. S. 24, 38-40.

44 Illinois Cent. R. Co. v. Griffin 39 Elmore v. Grymes, 1 Pet. 469. (C. C. A.), 80 Fed. R. 278. Even, it has been held where the 45 Walker v. Windsor Nat. Bank (C. State practice permitted, after the C. A.), 56 Fed. R. 76. judge had announced his intention 46 Columbia & P. S. R. Co. v. Hawto direct a verdict for the defendant thorne, 144 U. S. 202, 204; Northern but no such verdict had been made. Pac. R. Co. v. Charless (C. C. A.), 51 Chicago, M. & St. P. Ry. Co. v. Metal. Fed. R. 562, 572; Southern Pac. Co. staff (C. C. A.), 101 Fed. R. 769. v. Hamilton (C. C. A.), 54 Fed. R. 468.

40 Johnson v. Bailey, 59 Fed. R. 670. 47 Washington Tr. R. Co. v. McDade,

41 Ætna Life Ins. Co. v. Lakin (C. C. 135 U. S. 554, 571; Dunlap v. N. E. R. A.), 59 Fed. R. 989.

Co., 130 U. S. 649; Kane v. N. Central 12 Randall v. B. & O. R. Co., 109 Ry. Co., 128 U. S. 91; Louisville & N. U. S. 478; Bunt v. Sierra Butte G. R. Co. v. Woodson, 134 U. S. 614, 621. Min. Co., 138 U. S. 483; Hathaway v. 48 German Ins. Co. of Freeport, Ill. East Tenn., V. & G. R. Co., 29 Fed. R. v. Frederick (C. C. A.), 58 Fed. R. 144.

the evidence is conflicting, he makes it clear to the jury that they are not bound by his opinion.9 Exceptions to a charge or to a refusal to charge must be noted before the jury retire.50

The court may recall a jury which has retired, and give new instructions; 51 and even in a criminal case where, after a trial is begun, it is discovered that a juror is disqualified, the court may, under proper circumstances, discharge the jury and order a new trial against the defendant's objections.52

The determination as to whether a witness is competent to testify as an expert rests largely in the discretion of the trial judge, and will rarely be a ground for a reversal or writ of error. The jury may be allowed, under the custody of an officer, to leave the court room and inspect a machine or place. 54

The manner of selecting and the qualifications of jurymen are prescribed by statutes of the United States. Each party has the right to three peremptory challenges. 68

A judgment will not be reversed because a party was denied the right to open and close to the jury.57 In criminal cases it is customary, but, it seems, not necessary to follow the methods prescribed by the statutes of the respective States; and where there is no statute “the practice must not conflict with or abridge the right as it exists at common law.” 58

$ 375. Rules of decision at common law.- The Revised Statutes provide that “the laws of the several States, except

49 Vicksburg & M. R. Co. v. Putnam, 40 Fed. R. 820; U. S. v. Paxton, 40 118 U. S. 515; St. Louis, I. M. & S. Ry. Fed. R. 136; U. S. v. Ewan, 40 Fed. R. Co. v. Vickers, 122 U. 8. 360; U. S. v. 451; Ex parte Farley, 40 Fed. R. 66; Phila. & R. R. Co., 123 U. S. 113; Walker v. Collins, 50 Fed. R. 737; Rucker v. Wheeler, 127 U. S. 85, 93; Pullman's P. C. Co. v. Harkins, 55 Lovejoy v. U. S., 128 U. S. 171; infra, Fed. R. 932; Parker v. U. S., 151 U. S. $ 377. But see Starr v. U. S., 153 U. S. 396; Turner v. U. S., 66 Fed. R. 280. 614, 625.

56 Mutual L. Ins. Co. v. Hillmon, 145 50 Phelps v. Mayer, 15 How. 160. U. S. 285; supra, 8 371. See Stone v. 51 Allis v. U. S., 155 U. S. 117. U. S. (C. C. A.), 64 Fed. R. 667. 52 Thompson v. U. S., 155 U. S. 271. 57 Hall v. Weare, 92 U. S. 728; Day

53 Montana Ry. Co. v. Warren, 137 v. Woodworth, 13 How. 363; Lan. U. S. 348, 353; Stillwell Mfg. Co. v. caster v. Collins, 115 U. S. 222. As Phelps, 130 U. S. 520.

to the power of counsel to read cases 54 Owens v. Mo. Pac. Ry. Co., 38 in the presence of the jury, see Fed. R. 571.

Hastings v. No. Pac. Ry. Co., 53 Fed. 65 U. S. R. S., SS 800-882; Brewer v. R. 224. Jacobs, 22 Fed. R. 217; Lovejoy v. 58 Lewis v. U. S., 146 U. S. 370, 377, U. S., 128 U. S. 171; U. S. v. Chaires, 379.

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