ify after the institution of the suit, and then amend, setting. up his local qualification.20

A widow who sues as administrator can amend by bringing the suit in her own right, and vice versa.3°

An amendment of the declaration may be made during the trial in order to avoid a variance.31

Under section 954 an amendment can be made in the federal courts even after judgment, and in as vital a matter as the allegation of citizenship.32

In fact, whatever the state practice may be as to amendments, it cannot restrict the right of the federal courts under section 954, but that section governs in case of conflict or difference of practice.33

SAME-CONTINUANCES

142. In the matter of continuances the federal courts follow their own rules, and are not affected by the state law or practice, as continuances are not considered to come within the purview of section 914.84

29 Hodges v. Kimball, 91 Fed. 845, 34 C. C. A. 103; Dodge v. North Hudson (C. C.) 188 Fed. 491. See "Courts," Dec. Dig. (KeyNo.) § 347; Cent. Dig. § 921.

30 Van Doren v. Railroad Co., 93 Fed. 260, 35 C. C. A. 282; Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. See "Courts," Dec. Dig. (Key-No.) § 347; Cent. Dig. § 921. 31 Bamberger v. Terry, 103 U. S. 40, 26 L. Ed. 317; Snare & Triest Co. v. Friedman, 169 Fed. 1, 94 C. C. A. 369, 40 L. R. A. (N. S.) 367. See "Courts," Dec. Dig. (Key-No.) § 347; Cent. Dig. § 921. 32 Mexican Cent. Ry. Co. v. Duthie, 189 U. S. 76, 23 Sup. Ct. 610, 47 L. Ed. 715. See "Courts," Dec. Dig. (Key-No.) § 347; Cent. Dig. § 921.

33 Lange v. Union Pac. R. Co., 126 Fed. 338, 62 C. C. A. 48; Reardon v. Balaklala Consol. Copper Co. (C. C.) 193 Fed. 189. See "Courts," Dec. Dig. (Key-No.) § 259; Cent. Dig. §§ 795, 796.

34 Texas & P. R. Co. v. Nelson, 50 Fed. 814, 1 C. C. A. 688. See "Courts," Dec. Dig. (Key-No.) § 352; Cent. Dig. § 932.

The granting or refusing of a continuance in a federal court is a matter of discretion with the judge.35

SAME TRIAL

143. The making up of the jury in the federal courts is largely under the court's control, and it may adopt

the state practice or not, as it thinks fit, so far as it does not conflict with the federal statutes.36 The federal courts have their own procedure in reference to the question of trying cases without a jury. The trial may be without a jury when the jury is waived in writing.

Section 649 of the Revised Statutes 7 provides: "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, file with the clerk a stipulation in writing waiving a jury. 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."

And section 700 of the Revised Statutes 38 provides:

"When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Su

35 Fidelity & Deposit Co. v. L. Bucki & Son Lumber Co., 189 U. S. 135, 23 Sup. Ct. 582, 47 L. Ed. 744. See "Courts," Dec. Dig. (KeyNo.) § 352; Cent. Dig. § 932.

36 Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208; Judicial Code, § 275-288. See "Courts," Dec. Dig. (Key-No.) § 352; Cent. Dig. § 929.

37 U. S. Comp. St. 1901, p. 525. 38 U. S. Comp. St. 1901, p. 570.

preme Court upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment."

As these statutes referred in terms to the circuit court only, it was held in cases arising before the Judicial Code that there was no authority for waiving a jury in the district court, so that there was no review of matters of fact in that court.39

But section 291 of the Judicial Code provides that "wherever, in any law not embraced within this act, any reference is made to, or any power or duty is conferred or imposed upon, the circuit courts, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and impose such duty upon, the district courts."

The provisions of these statutes must be rigidly followed. It is not sufficient for the record simply to state that a jury was waived, but it must appear either by recitals in the record or by the filing of the paper that there was filed a stipulation in writing waiving a jury. Before the act was passed which is now embodied in section 649, the court had decided that, where the parties submitted the whole case. to the judge, he acted not as judge, but practically as arbitrator, and there could be no review of his decision.40

On similar reasoning, if the waiver is not in accordance with the statute, the same principle would apply, and parties who are not particular about this may find, when they try to reach the appellate court, that they have unconsciously submitted their case to arbitration, and that the court. of appeals will not review the decision of the judge sitting without a jury, except as to questions of law not involved

39 Campbell v. U. S., 224 U. S. 99, 32 Sup. Ct. 398, 56 L. Ed. 684. See "Courts," Dec. Dig. (Key-No.) § 352; Cent. Dig. § 930.

40 Campbell v. Boyreau, 21 How. 223, 16 L. Ed. 96. See "Courts," Dec. Dig. (Key-No.) § 352; Cent. Dig. §§ 929, 930.

HUGHES FED.PR. (2D ED.)-26

in the finding of facts, unless the record clearly shows that there was a stipulation in writing waiving a jury.*1

And even where there is such a stipulation the appellate court can only consider such errors as are excepted to at the time. 12

In respect to this the federal courts are not affected by state statutes. As the trial must be by jury unless waived, a state statute allowing a reference of a common-law case to auditors or referees will not be followed by the federal courts.43

SAME-SAME-EVIDENCE

144. The evidence in the federal courts is taken in a manner similar to that prevailing in the state courts, except that the federal courts have certain rules of their own relating to the taking of depositions.

In common-law cases it is provided by section 861 of the Revised Statutes that the mode of proof in the trial of an action at common law shall be by oral testimony and examination of witnesses in open court except as hereinafter provided. The cases "hereinafter provided" are those sections providing for the taking of depositions de bene esse, or the issuing of commissions.

An important statute in reference to the taking of depositions is the act of March 9, 1892.45 It provides:

41 BOND V. DUSTIN, 112 U. S. 604, 5 Sup. Ct. 296, 28 L. Ed. 835; Campbell v. U. S., 224 U. S. 99, 32 Sup. Ct. 398, 56 L. Ed. 684. See "Courts," Dec. Dig. (Key-No.) § 352; Cent. Dig. §§ 929, 930.

42 MCCREA v. PARSONS, 112 Fed. 917, 50 C. C. A. 612; Wilson v. Merchants' Loan & Trust Co., 183 U. S. 121, 22 Sup. Ct. 55, 46 L. Ed. 113. See "Appeal and Error," Dec. Dig. (Key-No.) § 850.

43 Sulzer v. Watson (C. C.) 39 Fed. 414; Erkel v. U. S., 169 Fed. 623, 95 C. C. A. 151. See "Courts," Dec. Dig. (Key-No.) § 352; Cent. Dig. §§ 929, 930.

44 U. S. Comp. St. 1901, p. 661.

45 U. S. Comp. St. 1901, p. 664.

"That in addition to the mode of taking the depositions of witnesses in causes pending at law or equity in the district and circuit courts of the United States, it shall be lawful to take the depositions or testimony of witnesses in the mode prescribed by the laws of the state in which the courts are held.”

There is some conflict of decision as to the scope of this act. In the New York circuit it has been held that this act authorizes the adoption of state statutes allowing the examination of the parties to the cause before the actual trial.46

On the other hand, the preponderance of authority, and the better authority, is that this statute was simply intended to cover the method of taking the deposition, and not to give any right to compel taking depositions under a state statute, which did not exist before, so that state statutes permitting the examination of parties before the trial are not applicable to the federal courts. These decisions. certainly seem to accord best with the language of the act.47 And the recent decision of the Supreme Court in Hanks Dental Ass'n v. International Tooth Crown Co.48 settles this as the law.

Where, however, a state statute authorizes a surgical examination, the federal courts will act under it; but the right to do this is based upon section 721 (U. S. Comp. St. 1901, p. 581), adopting the laws of the states as rules of

46 International Tooth-Crown Co. v. Hanks' Dental Ass'n (C. C.) 101 Fed. 306, overruled Hanks Dental Ass'n v. International ToothCrown Co., 194 U. S. 303, 24 Sup. Ct. 700, 48 L. Ed. 989. Compare Cheatham Electric Switching Devise Co. v. Transit Development Co. (C. C.) 190 Fed. 202; Wilson v. New England Nav. Co. (D. C.) 197 Fed. 88. See "Courts," Dec. Dig. (Key-No.) §§ 351, 371; Cent. Dig. $924.

47 Despeaux v. Pennsylvania R. Co. (C. C.) 81 Fed. 897; National Cash Register Co. v. Leland (C. C.) 77 Fed. 242. See "Courts," Dec. Dig. (Key-No.) §§ 350, 351; Cent. Dig. §§ 923, 924.

48 194 U. S. 303, 24 Sup. Ct. 700, 48 L. Ed. 989; ante, p. 10. See "Courts," Dec. Dig. (Key-No.) §§ 350, 351; Cent. Dig. §§ 923, 924.