158 Fed. 261; Minahan v. Grand Trunk Western R. Co. 70 C. C. A. 463, 138 Fed. 37; Chicago G. W. R. Co. v. Roddy, 65 C. C. A. 470, 131 Fed. 712; L. J. Mueller Furnace Co. v. Cascade Foundry Co. 76 C. C. A. 286, 145 Fed. 596.

The question of the sufficiency of evidence is one of law for the court. United States Fidelity & G. Co. v. Woodson County, 76 C. C. A. 114, 145 Fed. 151; Crookston Lumber Co. v. Boutin, 79 C. C. A. 368, 149 Fed. 680; Shoup v. Marks, 62 C. C. A. 540, 128 Fed. 32. (See Directing Verdict.)

Effect When Both Parties Ask Instructions.

In Beuttell v. Magone, 157 U. S. 155, 39 L. ed. 655, 15 Sup. Ct. Rep. 566, it is said that where both parties request peremptory instructions, it is equivalent to a request to the court to find the facts; and a direction by the court to find for one party or the other is a finding for the party for whom the instruction was given, and both are concluded by the finding (Bradley Timber Co. v. White, 58 C. C. A. 55, 121 Fed. 780; McCormick v. National City Bank, 73 C. C. A. 350, 142 Fed. 132, 6 Ann. Cas. 544; Empire State Cattle Co. v. Atchison, T. & S. F. R. Co. 77 C. C. A. 601, 147 Fed. 459, and cases cited; Bankers' Mut. Casualty Co. v. State Bank, 80 C. C. A. 32, 150 Fed. 78, and cases cited), unless there is no evidence to support the finding (Mead v. Chesbrough Bldg. Co. 81 C. C. A. 184, 151 Fed. 998, it is equivalent to saying that there is no disputed question of fact to control the law (West v. Roberts, 68 C. C. A. 58, 135 Fed. 350), or that the trial judge find the facts (Mead v. Darling, 86 C. C. A. 552, 159 Fed. 684). (See Directing Verdict.) In Insurance Co. of N. A. v. Wisconsin C. R. Co. 67 C. C. A. 300, 134 Fed. 798, it is said in such cases, after the court's decision the party cannot demand the submission of the case to the jury. Rainy Lake River Boom Corp. v. Rainy River Lumber Co. 89 C. C. A. 267, 162 Fed. 287. This rule is applicable only when both parties request an instruction and do nothing more, and the court finds for one or the other. In Empire State Cattle Co. v. Atchison, T. & S. F. R. Co. 210 U. S. 8, 9, 52 L. ed. 936, 937, 28 Sup. Ct. Rep. 607, 15 Ann. Cas. 70, the court in reviewing the decision in 77 C. C. A. 601, 147 Fed.

459, says "that nothing in the ruling in Beuttell v. Magone, supra, sustains the view, that a party asking a peremptory instruction may not, on the refusal of the court, insist, by appropriate request, upon the submission of the case to the jury, where the evidence is conflicting, or inferences to be drawn from the evidence are divergent,"-citing Minahan v. Grand Trunk Western R. Co. 70 C. C. A. 463, 138 Fed. 37, and McCormick v. National City Bank, 73 C. C. A. 350, 142 Fed. 132, 6 Ann. Cas. 544. In the last case, by way of illustration, it is said "a party may believe that a certain fact proven may entitle him to a verdict, but there may be other controverted facts which if proven entitle him to a verdict. It cannot be that, the court refusing a peremptory instruction as asked, he cannot then ask submission to the jury to determine other disputable facts which would entitle him to a verdict if found in his favor." This statement of the rule is approved by the supreme court in reviewing the case as stated above.

Permitting the Jury to Separate.

Permitting the jury to separate after the charge given is entirely within the discretion of the court, and State rules or Codes do not apply. Liverpool & L. & G. Ins. Co. v. N. & M. Friedman Co. 66 C. C. A. 543, 133 Fed. 713-716. This power falls within the administration of the judge in the discharge of his separate functions, and not within the conformity act, section 914, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 684. Nudd v. Burrows, 91 U. S. 426, 23 L. ed. 286.

Submitting Special Issues.

The court is not bound by State laws in requiring a special verdict on any issue. United States Mut. Acci. Asso. v. Barry, 131 U. S. 120, 33 L. ed. 66, 9 Sup. Ct. Rep. 755; Dwyer v. St. Louis & S. F. R. Co. 52 Fed. 89, and cases cited; Ætna L. Ins. Co. v. Vandecar, 30 C. C. A. 48, 57 U. S. App. 446, 86 Fed. 290.

Misconduct of Jury.

See Ruckle v. American Car & Foundry Co. 194 Fed. 460, as to how the misconduct of a jury may be shown.

Waiver of Jury.

By section 649, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 525, it is provided that issues of fact in civil cases in any circuit court may be tried and determined by the court without the intervention of a jury, whenever the parties or their attorneys of record shall file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, either general or special, shall have the same effect as the verdict of a jury. Hodges v. Easton, 106 U. S. 408, 27 L. ed. 169, 1 Sup. Ct. Rep. 307. We see, then, the jury must be waived by the consent of both parties in writing and filed as a part of the record. Columbus Compress Co. v. United States Fidelity & G. Co. 108 C. C. A. 465, 186 Fed. 488, and cases cited; Elkin v. Denver Engineering Works Co. 105 C. C. A. 1, 181 Fed. 685. However, though the trial be by the judge and no written waiver of the jury in the record, yet the appellate court will consider the case if the facts upon which the trial was had appeared in the record as an agreed statement. Talcott v. Friend, L.R.A. (N.S.), 103 C. C. A. 80, 179 Fed. 676.

Again, a written waiver is not necessary to assess damages on a bond after default, under U. S. Rev. Stat. sec. 961, U. S. Comp. Stat. 1901, p. 699, providing that a jury must be called if either party asks it in such cases. Brock v. Fuller Lumber Co. 82 C. C. A. 402, 153 Fed. 273; Aurora v. West, 7 Wall. 82, 19 L. ed. 42.

Again In Kearney v. Case, 12 Wall. 275, 20 L. ed. 395, it is said the parties may waive a jury without filing written consent, and a trial of the case may be had and a valid judgment obtained, but no error made by the trial judge will be considered by the appellate court. Elkin v. Denver Engineering Works Co. 105 C. C. A. 1, 181 Fed. 685; Erkel v. United States, 95 C. C. A. 151, 169 Fed. 623. So, an agreement in open court to refer to a referee the facts and to make a finding is a waiver of

the right of jury trial. United States v. Ramsey, 158 Fed. 488. By section 566, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 461, the trial of issues of fact in the district court must be by jury in all causes within its jurisdiction, except equity and admiralty, and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy. Under this act it has been uniformly held that the district judge could not try an issue of fact in this court. United States v. Louisville & N. R. Co. 93 C. C. A. 58, 167 Fed. 306, id. 94 C. C. A. 441, 169 Fed. 73; Low v. United States, 94 C. C. A. 1, 169 Fed. 86; Rogers v. United States, 141 U. S. 548, 35 L. ed. 853, 12 Sup. Ct. Rep. 91; United States v. Cleage, 88 C. C. A. 249, 161 Fed. 85. It has been further held that a jury could only be waived in the circuit courts of the United States under section 649, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 525; but since circuit courts have been abolished under the New Code, which went into effect January 1, 1912, and the powers and duties of these courts have been transferred to the district courts, section 648 and 649, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 525, apply to district courts (New Judicial Code, sec. 291) in all cases within the former jurisdiction of the circuit courts now transferred to the jurisdiction of the district courts.

Section 566, U. S. Rev. Stat. was not repealed by the New Code, and would still apply to all cases of which the district courts had original jurisdiction prior to the New Code going into effect. These cases must still be tried by jury,—as, for instance, cases arising under the criminal jurisdiction of the Federal courts. See Low v. United States, 94 C. C. A. 1, 169 Fed. 86.

As to provisions for finding facts by jury in admiralty, see U. S. Comp. Stat. 1901, pp. 525, 526.

As to trials of fact in bankruptcy (30 Stat. at L. 551, chap. 541, sec. 19, U. S. Comp. Stat. 1901, p. 3429), see Duncan v. Landis, 45 C. C. A. 666, 106 Fed. 842.

CHAPTER XI.

TRIAL BY A JUDGE.

We have seen by section 649, U. S. Comp. Stat. 1901, p. 525, a jury may be waived and a trial had before the judge of the issues of fact and law. By section 700, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 570, it is provided that when an issue of fact is tried and determined by the court without the intervention of a jury, the rulings of the court in the progress of the trial, if duly excepted to at the time and duly presented by a bill of exceptions, and the conclusions of the court may be reviewed by the appellate court on error or appeal; and when the finding is special the review may extend to the sufficiency of the facts found to support the verdict. By section 649, U. S. Rev. Stat. the finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury. Having thus grouped the statutes of the United States permitting facts in an action at law to be tried by a judge, State statutes authorizing the waiving of a jury and a trial by the judge do not apply to Federal courts. Erkel v. United States, 95 C. C. A. 151, 169 Fed. 623.

When the trial is before the judge, requests to find on questions of law as well as fact may be made, where a review of the law is desired. Paul v. Delaware, L. & W. R. Co. 130 Fed. 951; Norris v. Jackson, 9 Wall. 125, 19 L. ed. 608; Union County Nat. Bank v. Ozan Lumber Co. 103 C. C. A. 584, 179 Fed. 710-712, and cases cited. See Joline v. Metropolitan Securities Co. 164 Fed. 650. Otherwise the separate conclusions of law in a trial before the jury are not contemplated by U. S. Rev. Stat. sections 649 and 700. Fowler v. Going, 91 C. C. A. 569, 165 Fed. 892.

Objections to the admission or exclusion of evidence, or to the court's ruling on propositions of law, must appear by bill of exceptions as required. Section 700, U. S. Rev. Stat. Paul v. Delaware, L. & W. R. Co. 130 Fed. 951-956; Oxford & Coast Line R. Co. v. Union Bank, 82 C. C. A. 609, 153 Fed. 724.