The trial judge may be compelled to sign a bill of exceptions by mandamus, provided it is a proper bill.84

In the form and other procedure relating to bills of exception the federal courts also have their own rules, and do not regard the state practice. 65

The method of taking exceptions to instructions varies greatly in the federal and state courts. Certainly the difference between the federal practice and the practice in the state of Virginia is very great. Where the judge charges the jury, an exception will fall if it is taken to the whole charge, unless the entire charge is wrong. It is the duty of the exceptant to point out the special portions of the charge which he considers objectionable. So, too, as to instructions involving more than one proposition, he must. indicate the special parts of the instruction to which he objects; otherwise his exception will fall. And he must take a separate exception to each instruction, or to each error of law involved in the instruction, and make each one the subject of a separate assignment of error.

These rules are essential to the proper maturing of a common-law case in the federal courts, if it is wished to review its proceeding in an appellate court.66

If a single exception is taken to the entire charge, and there is any part at all of the charge right, the exception falls.67

On the other hand, if a series of instructions is asked, and the court refuses them, and a bill of exceptions is taken

64 In re CHATEAUGAY ORE & IRON CO., 128 U. S. 544, 9 Sup. Ct. 150, 32 L. Ed. 508. See "Exceptions, Bill of," Dec. Dig. (KeyNo.) § 53; Cent. Dig. §§ 80-88.

65 In re CHATEAUGAY ORE & IRON CO., 128 U. S. 544, 9 Sup. Ct. 150, 32 L. Ed. 508; Ghost v. U. S., 168 Fed. 841, 94 C. C. A. 253. See "Courts," Dec. Dig. (Key-No.) § 356; Cent. Dig. § 937.

66 THOM v. PITTARD, 62 Fed. 232, 10 C. C. A. 352; South Penn Oil Co. v. Latshaw, 111 Fed. 598, 49 C. C. A. 478. See "Courts," Dec. Dig. (Key-No.) § 356; Cent. Dig. § 937.

67 Western Assur. Co. v. Polk, 104 Fed. 649, 44 C. C. A. 104. See "Trial," Dec. Dig. (Key-No.) § 281; Cent. Dig. § 694.

to the action of the court in refusing them, the exception falls if any one of those instructions is wrong."8

SAME-SAME-VERDICT

147. The federal courts, though not compelled to do so, conform in a general way to the practice of the state courts in relation to the form of, and rules governing, the verdict; but they are not bound by state statutes requiring the courts to submit to the jury special questions of fact, and requiring the jury to make special findings in pursuance of such submissions.

As to the mere question of form, the federal courts follow the state court practice. So, too, where the state courts allow a single verdict on several counts, the federal courts will do the same.69

In many of the states there are laws requiring the courts to submit to the jury special questions of fact, and requiring the jury to make special findings in pursuance of such submissions. The federal courts have always refused to be bound by these statutes, considering that the control and handling of the jury is not a matter of practice, pleading, or procedure in the sense of section 914 of the Revised Statutes, but rather is a matter affecting the personal conduct and discretion of the judge, in which they will not permit state statutes to bind them.70

68 Illinois Car & Equipment Co. v. Linstroth Wagon Co., 112 Fed. 737, 50 C. C. A. 504. See "Trial," Dec. Dig. (Key-No.) § 281; Cent. Dig. § 694.

69 BOND v. DUSTIN, 112 U. S. 604, 5 Sup. Ct. 296, 28 L. Ed. 835; Illinois Car & Equipment Co. v. Wagon Co., 112 Fed. 737, 50 C. C. A. 504; Glenn v. Sumner, 132 U. S. 152, 10 Sup. Ct. 41, 33 L. Ed. 301. See "Courts," Dec. Dig. (Key-No.) § 352; Cent. Dig. § 927. 70 United States Mut. Acc. Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60; INDIANAPOLIS & ST. L. R. CO. v. HORST, 93 U. S. 291, 23 L. Ed. 898; Toledo, St. L. & W. R. Co. v. Reardon,

The federal court has power to amend a verdict in matters of form, and to receive a sealed verdict, and put it in proper form, when the parties had stipulated that the jury could send in their verdict sealed during a recess."1

SAME-MOTION FOR NEW TRIAL

148. The federal courts follow the usual practice of common-law courts in regard to new trials, and do not feel bound in this respect by state practice.

Section 269 of the Judicial Code provides in reference to the federal courts: "All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law." Here the federal courts decline to follow the state court practice, considering that the question as to granting or withholding a new trial is not a question of pleading, practice, or procedure.72

The granting or refusing of a new trial in the federal courts is a matter of discretion, and cannot be the subject of a bill of exceptions.73

159 Fed. 366, 86 C. C. A. 366. See "Courts," Dec. Dig. (Key-No.) § 352; Cent. Dig. § 927.

71 Lincoln Tp. v. Cambria Iron Co., 103 U. S. 412, 26 L. Ed. 518: Koon v. Phoenix Mut. Life Ins. Co., 104 U. S. 106, 26 L. Ed. 670. But a court cannot before discharging a jury ask how they stand. Burton v. U. S., 196 U. S. 283, 25 Sup. Ct. 243, 49 L. Ed. 482. See "Criminal Law," Dec. Dig. (Key-No.) § 864; "Trial," Dec. Dig. (KeyNo.) § 340; Cent. Dig. §§ 795-799.

72 INDIANAPOLIS & ST. L. R. CO. v. HORST, 93 U. S. 291, 23 L. Ed. 898; Fishburn v. Chicago, M. & St. P. Ry. Co., 137 U. S. 60, 11 Sup. Ct. 8, 34 L. Ed. 585; Hughey v. Sullivan (C. C.) 80 Fed. 72. See "Courts," Dec. Dig. (Key-No.) § 353; Cent. Dig. § 933.

73 Newcomb v. Wood, 97 U. S. 581, 24 L. Ed. 1085; Murhard Estate Co. v. Portland & S. R. Co., 163 Fed. 194, 90 C. C. A. 64. The court has power to put the successful party on terms as a condition of refusing a new trial. Darnell v. Krouse (C. C.) 134 Fed. 509; Daigneau v. Grand Trunk R. Co. (C. C.) 153 Fed. 593. See

There is one important qualification of the above doctrine that the federal courts do not follow the state court practice in reference to new trials. Some states have laws giving a new trial as an absolute matter of right in certain classes of cases, mainly involving title to real estate. Where such a law exists, the federal courts will follow it in cases pending on their common-law side, and will grant a new trial under these circumstances."4

SAME-MOTION IN ARREST OF JUDGMENT

149. The practice of the federal courts in respect to motions in arrest of judgment corresponds to the general common-law doctrine.

A motion in arrest of judgment under section 954, which is the federal statute of jeofails, will not lie for a variance, nor on account of mere matters of fact, nor for mere defects of form, but only for substantial and irremediable defects in the cause of action.75

SAME-JUDGMENT

150. At this point, as far as questions of practice, pleading, or procedure are concerned, section 914 of the Revised Statutes, assimilating the federal to the state practice, no longer applies; proceedings subsequent to the judgment being the dividing line.76

"Appeal and Error," Dec. Dig. (Key-No.) § 977; Cent. Dig. §§ 38603865.

74 Smale v. Mitchell, 143 U. S. 99, 12 Sup. Ct. 353, 36 L. Ed. 90. See "Courts," Dec. Dig. (Key-No.) § 353; Cent. Dig. § 933.

75 Adams v. Shirk, 104 Fed. 54, 43 C. C. A. 407; Id., 117 Fed. 801, 55 C. C. A. 25; Peden v. Bridge Co. (C. C.) 120 Fed. 523; American Bridge Co. v. Peden, 129 Fed. 1004, 64 C. C. A. 580. See "Judgment," Dec. Dig. (Key-No.) §§ 259-266; Cent. Dig. $$ 457-499.

76 Detroit United Ry. v. Nichols, 165 Fed. 289, 91 C. C. A. 257. See "Courts," Dec. Dig. (Key-No.) § 355; Cent. Dig. §§ 935, 936.

While the federal courts will follow the state practice as to the mere form of the judgment, their control over it from that time forward is regulated by the federal decisions and statutes, and not by the state practice. They may correct the record, after the term, in mere clerical errors, but in no other way.""

Under the federal practice and decisions a judgment cannot be set aside after the term during which it is rendered, though the statute of the state may provide summary remedies by motion for the purpose of regulating judgments in its own courts.78

It is hard to reconcile with the authorities last cited the case of Travelers' Protective Ass'n v. Gilbert.79 There the court held that it could adopt a state remedy by motion for the reopening of a judgment, and that, when such a right existed in the state practice, it took away from the federal courts their equitable jurisdiction for the reopening or setting aside of judgments. Both these propositions are inconsistent with the above case of Bronson v. Schulten, in which the court says that, independent of these state statutes allowing the correction of judgments by motion, the power to regulate judgments after the term in which they were rendered was an equitable power. Nothing is better settled in federal law than the doctrine that the ancient equitable jurisdiction possessed by the federal courts remains with them despite newer remedies given by state statutes. The states cannot defeat the federal jurisdiction

77 City of Manning v. Insurance Co., 107 Fed. 52, 46 C. C. A. 144; Home St. Ry. Co. v. Lincoln, 162 Fed. 133, 89 C. C. A. 133. But they may during the term. Southern P. Co. v. Kelley, 187 Fed. 937, 109 C. C. A. 659. See "Courts," Dec. Dig. (Key-No.) § 354; Cent. Dig. § 934.

78 BRONSON v. SCHULTEN, 104 U. S. 410, 26 L. Ed. 997; City of Manning v. Insurance Co., 107 Fed. 52, 46 C. C. A. 144; Tubman v. Baltimore & O. R. Co., 190 U. S. 38, 23 Sup. Ct. 777, 47 L. Ed. 946; Menge v. Warriner, 120 Fed. 816, 57 C. C. A. 432. Soe "Courts," Dec. Dig. (Key-No.) § 354; Cent. Dig. § 934.

79 111 Fed. 269, 49 C. C. A. 309, 55 L. R. A. 538. See "Courts," Dec. Dig. (Key-No.) § 354; Cent. Dig. § 934.