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. R. 641; Searcy County v. Thompson (C. C. A.), 66 Fed. R. 92; Rhodes v. U. S. Nat. Bank (C. C. A.), 66 Fed. R. 512; City of Key West v. Baer (C. C. A.), 65 Fed. R. 440; D. & C. F. Co. v. Gottschalk, 66 Fed. R. 609. But see Citizens' Bank v. Farwell (C. C. A.), 63 Fed. R. 117. 15 Paine v. Central Vt. R. Co., 118 U. S. 152, 158; Boogher v. Insurance Co., 103 U. S. 90. See Dundee M. & Tr. Co. v. Hughes, 124 U. S. 157. A rule of the Circuit Court of the United States for the Northern, Eastern and Southern Districts of New York provides that: "In actions at law, a consent to a reference of the whole issue must likewise contain a provision that judgment shall not be entered until after ten days' notice of the filing of the report of the referee, and of the judgment proposed to be entered thereon. After a reference, at any time before the entry of judgment, either party may move for a new trial upon a case or exceptions, and if such motion be denied, the decision of the motion and the questions involved in it may be entered on the record, as if it had been a ruling made upon a trial by the judge without a jury, and excepted to in like manner. When a motion for a new trial is intended to be made, the court may extend the time for entering judgment, upon the application of the moving party, and may stay all other proceedings until the decision of the motion." 13 Blatchf. 568, 569. Cf. Chicago, M. & St. P. Ry. Co. v. Clark, 178 U. S. 353, 364. An order of reference in accordance with this rule may be entered after the filing of the referee's report nunc pro tunc, in accordance with a stipulation made prior to the reference. Robinson v. Mut. Ben. L. I. Co., 16 Blatchf. 194, 200. After judgment, no motion for a new trial under this rule can be made. Naefie v. Cheesebrough, 14 Blatchf. 313. The court of error has thus reviewed the decision of the lower court upon a motion to strike out a notice of a termination of the reference, which was decided after the report was filed, and also the decision of a motion to set aside the report because of such a notice. Parker v. Ogdensburg, L. & L. C. R. Co. (C. C. A.), 79 Fed. R. 817. It was held that a stipulation to refer a case to a special master, and that the rights of the parties shall be the same as though the case were one within the terms of the State statute, neither enlarges nor contracts the rights of the parties with respect to a review by the Circuit Court of Appeals of a judgment on a trial without a jury, Shipman v. Ohio Coal Exchange (C. C. A.), 70 Fed. R. 652; and that an oral consent in open court to an order of reference, made pursuant to a State statute (Nebraska), will not enable the Circuit Court of Appeals in the Eighth Circuit to review the action of the Circuit Court on exceptions to the referee's report, where there is no bill of exceptions making that 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.22 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 amend it was founded, a part of the record. Dietz v. Lymer (C. C. A.), 63 Fed. R. 758. See also Board of Com'rs of Hamilton County v. Sherwood (C. C. A.), 64 Fed. R. 103. 16 Andes v. Slauson, 130 U. S. 435. 17 Bond v. Dustin, 112 U. S. 604, 607; Supervisors v. Kennicott, 103 U. S. 554; U. S. v. Eliason, 16 Pet. 291; Burr v. Des Moines R. & Nav. Co., 1 Wall. 99; Campbell v. Boyreau, 21 How. 223, 226. But see Glenn v. Fant, 134 U. S. 398. When a judgment upon agreed facts is reversed because the facts stipulated were evidential only, a new trial may be ordered with liberty to each party to offer additional evi dence not inconsistent with the stipulation. Burnham v. No. Chicago St. Ry. Co. (C. C. A.), 88 Fed. R. 627. 18 Raimond v. Terrebonne Parish, 132 U. S. 192. 19 Glenn v. Fant, 134 U. S. 398; Davenport v. Paris, 136 U. S. 580. 20 Meath v. Mississippi Levee Com'rs, 109 U. S. 268; British Q. Min. Co. v. Baker S. Min. Co., 139 U. S. 222. 21 Meath v. Mississippi Levee Com'rs, 109 U. S. 268; British Q. Min. Co. v. Baker S. Min. Co., 139 U. S. 222. 22 Abraham v. Levy (C. C. A.), 72 Fed. R. 124. 23 Rogers v. U. S., 141 U. S. 548. 24 ment; but it cannot enable a court of law to assume the jurisdiction of a court of equity. 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 32 29 31 No State statute 26 or constitutional 27 provision regulating the manner of the trial,28 or applications for postponements or continuances, or form of a verdict," or providing for the trial of a class of cases before a judge without a jury, compulsory references in a special class of cases, such as an action on an account, 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, 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. The State practice in the withdrawal of jurors may in a proper case be followed.36 34 The trial judge has no power to order a compulsory nonsuit, but may dismiss the complaint if the State practice per 24 Willard v. Wood, 135 U. S. 309, 814. 25 Willard v. Wood, 135 U. S. 309. 26 Nudd v. Burrows, 91 U. S. 426; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291. 27 St. Louis, L. M. & S. Ry. Co. v. Vickers, 122 U. S. 360. 28 Nudd v. Burrows, 91 U. S. 426; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291; Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545; St. Louis, I. M. & S. Ry. Co. v. Vickers, 122 U. S. 360. 31 Klever v. Seawall, 65 Fed. R. 393. 32 Howe Mach. Co. v. Edwards, 15 Blatchf. 402; U. S. v. Rathbone, 2 Paine, 578; Sulzer v. Watson, 39 Fed. R. 414. 33 Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545; St. Louis, I. M. & S. Ry. Co. v. Vickers, 122 U. S. 360; U. S. v. Phila. & R. R. Co., 123 U. S. 113; Rucker v. Wheeler, 127 U. S. 85, 93; Lovejoy v. U. S., 128 U. S. 171. 34 Nudd v. Burrows, 91 U. S. 426. 35 Gray, J., in Glenn v. Sumner, 132 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. 30 Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291; Abbott v. Curtis & Co. Mfg. Co., 25 Fed. R. 402; U. S. Mut. Acc. Ass'n v. Barry, 131 U. S. 100. For example, a direction that exemplary damages must be separately assessed. Times Pub. Co. v. Carlisle (C. C. A.), 94 Fed. R. 762. 36 Silsby v. Foote, 14 How. 218, 220. 37 Elmore v. Grymes, 1 Pet. 469; D'Wolf v. Rabaud, 1 Pet. 476; Crane v. Morris, 6 Pet. 598; Silsby v. Foote, 14 How. 218; Castle v. Bullard, 23 How. 172. It has been held that, when the plaintiff fails to appear upon the trial, the proper practice is to impanel a jury and direct a ver 40 mits that to be done. 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 his 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. The judge may also comment upon the facts, provided that, when dict for the defendant. Patting v. 39 Elmore v. Grymes, 1 Pet. 469. Even, it has been held where the State practice permitted, after the judge had announced his intention to direct a verdict for the defendant but no such verdict had been made. Chicago, M. & St. P. Ry. Co. v. Metalstaff (C. C. A.), 101 Fed. R. 769. 40 Johnson v. Bailey, 59 Fed. R. 670. 41 Ætna Life Ins. Co. v. Lakin (C. C. A.), 59 Fed. R. 989. 42 Randall v. B. & O. R. Co., 109 U. S. 478; Bunt v. Sierra Butte G. Min. Co., 138 U. S. 483; Hathaway v. East Tenn., V. & G. R. Co., 29 Fed. R. 489; Hodges v. Kimball (C. C. A.), 104 Fed. R. 745. 43 N. Y. & T. S. S. Co. v. Anderson (C. C. A.), 50 Fed. R. 462; U. S. v. Bank of Metropolis, 15 Pet. 377. 44 Illinois Cent. R. Co. v. Griffin (C. C. A.), 80 Fed. R. 278. 45 Walker v. Windsor Nat. Bank (C. C. A.), 56 Fed. R. 76. 46 Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 204; Northern Pac. R. Co. v. Charless (C. C. A.), 51 Fed. R. 562, 572; Southern Pac. Co. v. Hamilton (C. C. A.), 54 Fed. R. 468. 47 Washington Tr. R. Co. v. McDade, 135 U. S. 554, 571; Dunlap v. N. E. R. Co., 130 U. S. 649; Kane v. N. Central Ry. Co., 128 U. S. 91; Louisville & N. R. Co. v. Woodson, 134 U. S. 614, 621. 48 German Ins. Co. of Freeport, Ill. 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.49 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; 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 53 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." The manner of selecting and the qualifications of jurymen are prescribed by statutes of the United States. has the right to three peremptory challenges.56 Each party 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, 118 U. S. 515; St. Louis, L. M. & S. Ry. Co. v. Vickers, 122 U. S. 360; U. S. v. Phila. & R. R. Co., 123 U. S. 113; Rucker v. Wheeler, 127 U. S. 85, 93; Lovejoy v. U. S., 128 U. S. 171; infra, § 377. But see Starr v. U. S., 153 U. S. 614, 625. 50 Phelps v. Mayer, 15 How. 160. 51 Allis v. U. S., 155 U. S. 117. 52 Thompson v. U. S., 155 U. S. 271. 53 Montana Ry. Co. v. Warren, 137 U. S. 348, 353; Stillwell Mfg. Co. v. Phelps, 130 U. S. 520. 40 Fed. R. 820; U. S. v. Paxton, 40 Fed. R. 136; U. S. v. Ewan, 40 Fed. R. 451; Ex parte Farley, 40 Fed. R. 66; Walker v. Collins, 50 Fed. R. 737; Pullman's P. C. Co. v. Harkins, 55 Fed. R. 932; Parker v. U. S., 151 U. S. 396; Turner v. U. S., 66 Fed. R. 280. 56 Mutual L. Ins. Co. v. Hillmon, 145 U. S. 285; supra, § 371. See Stone v. U. S. (C. C. A.), 64 Fed. R. 667. 57 Hall v. Weare, 92 U. S. 728; Day v. Woodworth, 13 How. 363; Lancaster v. Collins, 115 U. S. 222. As 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. R. 224. 65 U. S. R. S., §§ 800-882; Brewer v. Jacobs, 22 Fed. R. 217; Lovejoy v. U. S., 128 U. S. 171; U. S. v. Chaires, 58 Lewis v. U. S., 146 U. S. 370, 377, 379. |