6

Pitt Mining & Milling Co., C. C. A., 202 Fed. 724. An objection to the exclusion of a question upon crossexamination cannot be considered unless the bill of exceptions states the substance of the testimony in chief of the witness. First Nat. Bank of Pittston v. Hoggson Bros., C. C. A., 242 Fed. 261. To a large extent, the course and extent of a cross-examination of a witness is subject to the control of the court in the exercise of a sound discretion; and the exercise of that discretion is not ordinarily reviewable on a writ of error. Rea v. Missouri, 17 Wall. 532, 21 L. ed. 707. But see Eames v. Kaiser, 142 U. S. 488, 35 L. ed. 1090; O'Connell v. Pennsylvania Co., C. C. A., 118 Fed. 989. Nor is ordinarily a limitation of the scope of a cross-examination because it is not germane to the examination in chief or has been unduly extended. Post Pub. Co. v. Peck, C. C. A., 199 Fed. 6. Nor the admission of a question objected to as leading. Linn v. U. S., C. C. A., 251 Fed. 476. Nor a ruling as to the qualification of a witness to testify. U. S. v. Fischer, C. C. A., 245 Fed. 422. Nor the admission or exclusion of testimony objected to as too remote. Overstreet v. Norfolk

& W. Ry. Co., C. C. A., 238 Fed. 565. It has been held that an erroneous admission of evidence in corroboration of the testimony of an unimpeached and uncontradicted witness, in respect to a matter of detail, is not a ground for reversal. First Nat. Bank of Houston v. Wells, Fargo & Co., C. C. A., 127 Fed. 818.

3 Himrod v. Ft. Pitt Mining & Milling Co., C. C. A., 202 Fed. 724.

4 Buckstaff v. Russell, 151 U. S. 626, 38 L. ed. 292. See §§ 473, 473d, 478, 479, supra.

5 McCurley v. National Savings & Trust Co., 258 Fed. 154.

6 Platte Valley Cattle Co. v. Bosserman-Gates Live Stock & Loan Co., C. C. A., 202 Fed. 692; Owl Creek Coal Co. v. Goleb, C. C. A., 210 Fed. 209.

7 Hinde v. Longworth, 11 Wheat. 199, 6 L. ed. 454; Pennock v. Dialogue, 2 Pet. 1, 7 L. ed. 327; Nelson v. Woodruff, 1 Black, 156 17 L. ed. 97; Cucullu v. Emmerling, 22 How. 83, 16 L. ed. 300; Prialeau v. U. S., C. C. A., 143 Fed. 320. The same rule has been applied upon an appeal in equity. Kalamazoo Ry. Supply Co. v. Duff Mfg. Co., C. C. A., 113 Fed. 264. It is too late to raise upon writ of error for the first time

upon writ of error or appeal the objection that a deposition read in evi dence without objection was taken too late, Ray v. Smith, 17 Wall, 411, 21 L. ed. 666. A judgment will rarely be reversed for the admission of evidence against an objection and exception when the ground of the objection was not stated, Ward v. Blake Mfg. Co., C. C. A., 56 Fed. 437, 441; U. S. v. Shapleigh, C. C. A., 54 Fed. 126; No. Pac. R. Co. v. Charless, C. C. A., 51 Fed. 562; Burton v. Driggs, 20 Wall. 125, 22 L. ed. 299; Deering Harvester Co. v. Kelly, C. C. A., 103 Fed. 261; Westinghouse El. & Mfg. Co. v. Stanley Instrument Co., C. C. A., 133 Fed. 167, 174; Klein v. Darnell, C. C. A., 239 Fed. 844; Smith v. Smith, C. C. A., 247 Fed. 461; at least unless the objection is one which could not have been obviated by preliminary evidence; or by a change in the form of the question; or otherwise, Westinghouse El. & Mfg. Co. v. Stanley Instrument Co., C. C. A., 133 Fed. 167, 174; Turner v. Newburgh, 109 N. Y. 301, 308, and authorities cited in 38 Cyc. 1385; or possibly where the evidence is so clearly irrevelant or incompetent that the trial court could not fail to understand the ground of the objection. Deering Harvester Co. v. Kelly, C. C. A., 103 Fed. 261, 264; Groh v. Groh, 177 N. Y. 8; Nevers Lumber Co. v. Fields, 151 Ala., 367, 44 So. Rep. 81; 38 Cyc. 1385, 1386. § 711f.

1 See supra, § 711b.

2 Buckingham

V. McLean, 13 How. 150, 14 L. ed. 90; Riddle v. Whitehill, 135 U. S. 621, 34 L. ed. 283. See, however, Gunn v. Black, C. C. A., 60 Fed. 151. Buster v. Wright, C. C. A., 135 Fed. 947; supra, § 695.

The court, where the assignment of errors is sufficient, will review upon an appeal from a final judgment or decree: a decision on a plea of abatement to a writ of attachment. Fitzpatrick v. Flannigan, 106 U. S. 648, 27 L. ed. 211. But see Leitensdorfer v. Webb, 20 How. 176, 15 L. ed. 891. An order denying a motion to remand seasonably made, on the ground that the petition for a removal was filed too late or because the case was not removable. Edrington v. Jefferson, 111 U. S. 770, 28 L. ed. 594; supra, § 558. In an extraordinary case a denial of leave to amend. Riddle v. Whitehill, 135 U. S. 621, 34 L. ed. 282; Hernan v. Am. Bridge Co., C. C. A., 167 Fed. 930. But see National Bank v. Carpenter, 101 U. S. 567, 568, 25 L. ed. 815, 816; Gormley v. Bunyan, 138 U. S. 623, 634, 34 L. ed. 1086 1090; Hernan v. Am. Bridge Co., C. C. A., 167 Fed. 930; Garrett v. Louisville & N. R. Co., C. C. A., 197 Fed. 715, 723; supra, §§ 215, 711b. An order made without jurisdiction granting a new trial. Coughlin v. District of Columbia, 106 U. S. 7, 27 L. ed. 74. Cf. Spaulding v. Mason, 161 U. S. 375, 40 L. ed. 738; supra, §§ 478, 711b. An order fining a party

for contempt, and directing that part of the fine be paid to the opposite party, Worden v. Searls, 121 U. S. 14, 26, 30 L. ed. 853, 857. See supra, §§ 436, 437. Where the defendant after his demurrer had been overruled was allowed to answer by an order expressly reserving his objection to such ruling, the court considered the question upon a writ of error to the final judgment. Bauserman v. Blunt, 147 U. S. 647, 37 L. ed. 316. It was so held, when leave to reserve the objection had not been granted. Dennis v. Slyfield, C. C. A., 117 Fed. 474. But a court of review will not reverse a judgment an error in ruling upon a plea to the jurisdiction of the court. U. S. R. S., § 1011. See Henderson v. Henshall, C. C. A., 54 Fed. 320, 330, and supra, § 687. Nor reverse a prior order or decree which was in its nature final. Hill v. Chicago & E. R. Co., 140 U. S. 52, 35 L. ed. 331; Quinton v. Neville, C. C. A., 154 Fed. 432. See Porter v. Pittsburg B. S. Co., 120 U. S. 649, 30 L. ed. 830; supra, $$ 397, 695. Nor it has been said an order granting an interlocutory injunction which was itself appealable. Chapman v. Yellow Poplar Lumber Co., C. C. A., 143 Fed. 201, 204 (holding that so much of an order as required the plaintiff to replead at law could be reviewed upon appeal from the final decree); nor review an order subsequent to that specified in the writ of error or appeal. Ford Motor Co. v. Harrington, C. C. A., 245 Fed. 850. The fact that a prior appeal, which had been dismissed for a failure to perfect the same or for some other reason, was taken from the interlocutory order or decree, does not prevent this from being thus reviewed on appeal

from the subsequent final decree, Buckingham v. McLean, 13 How. 150, 14 L. ed. 90. Upon an appeal from a final decree, a subsequent order denying a motion to set the same aside cannot be reviewed. Nowell v. International Tr. Co., C. C. A., 169 Fed. 497. An appeal from an order confirming a sale does not bring up for view a decree denying a motion to dismiss the bill. Turner v. Farmer L. & Tr. Co., 106 U. S. 552, 27 L. ed. 273; Long v. Maxwell, C. C. A., 59 Fed. 948. A judgment or order on a collateral question arising on the suggestion of a party not on the record, who has himself sued out no writ of error, cannot be thus reviewed. Bayard v. Lombard, 9 How. 530, 13 L. ed. 245. Upon an appeal from an order directing payment out of the proceeds of a foreclosure sale, the propriety of the orders made during the foreclosure is not considered. Central Tr. Co. v. Grant Locom. Works, 135 U. S. 207, 34 L. ed. 97. Where a suit originally in equity was transferred by consent to the common-law side of the court below, it was held that a bill of exceptions did not bring up for revision proceedings prior to such transfer. Nations v. Johnson, 24 How. 195, 16 L. ed. 628. An appellate court will not hold that the court below erred in the interpretation of its own order, unless it is clear that injustice resulted from the erroneous interpretation. Girard L. Ins. Ass'n & Tr. Co. v. Cooper, C. C. A., 51 Fed. 332, 335. For a case where it was held that the reversal of one judgment compelled the reversal of another, see Blanco v. Hubbard, 220 U. S. 233, 55 L. ed. 447.

§ 711g. 1 Barrow v. Reab, 9 How. 366, 13 L. ed. 177; Lathrop v. Judson, 19 How. 66, 15 L. ed. 553; Ins. Co. of Va. Valley v. Mordecai, 22 How. 111, 16 L. ed. 329; De Soury v. Nicholson, 3 Wall. 420, 18 L. ed. 263; Clements v. Moore, 6 Wall. 299, 18 L. ed. 786; Tome v. Dubois, 6 Wall. 548, 18 L. ed. 943; The Georgia, 7 Wall. 32, 19 L. ed. 122; Laber v. Cooper, id. 565, 19 L. ed. 151; Alviso v. U. S., 8 Wall. 337, 19 L. ed. 305; The Eagle, id. 15, 19 L. ed. 365; Express Co. v. Kountze, id. 342, 19 L. ed. 457; Nat. Bank v. Kentucky, 9 Wall. 353, 19 L. ed. 701; Rogers v. Bitter, 12 Wall. 317, 20 L. ed. 417; Klein v. Russell, 19 Wall. 433, 22 L. ed. 116; Wood County v. Lackawanna I. & C. Co., 93 U. S. 619, 23 L. ed. 989; Wheeler v. Sedgwick, 94 U. S. 1, 24 L. ed. 31; Flournoy v. Lastrapes, 131 U. S. clxi, 25 L. ed. 406; U. S. v. Morgan, 131 U. S. clxiv, 19 L. ed. 256; Wilson v. McNamee, 102 U. S. 572, 26 L. ed. 234; Springer v. U. S., id. 586, 26 L. ed. 253; Wood v. Weimar, 104 U. S. 786, 26 L. ed. 779; Clark v. Fredericks, 105 U. S. 4, 26 L. ed. 938; Morrill v. Jones, 106 U. S. 466, 21 L. ed. 267; Union Pac. R. Co. v. Myers (Pacific R. R. Removal Cases), 115 U. S. 1, 29 L. ed. 319; Gila Valley Ry. Co. v. Hall, 232 U. S. 97; Grant Bros. Constr. Co. v. U. S., 232 U. S. 647; Hessian v. Patten, C. C. A., 156 Fed. 956; Bluegrass Canning Co. v. Stewart, C. C. A., 175 Fed. 537; Provident Life & Tr. Co., v. Camden & T. Ry. Co., C. C. A., 117 Fed. 854; Tredegar Co. v. Seaboard Air Line Ry., C. C.

A., 183 Fed. 289; Choctaw, O. & G. R. Co. v. Jackson, C. C. A., 192 Fed. 792; Burchett v. U. S., C. C. A., 194 Fed. 821; J. H. Lane & Co. v. Maple Cotton Mills, C. C. A., 226 Fed. 692; Richardson v. Fajardo Sugar Co., C. C. A., 237 Fed. 195; Kleman v. Anheuser-Busch Brewing Ass'n, C. C. A., 237 Fed. 993. It is too late to object in the Supreme Court for the first time that an appeal below was heard at chambers, and not in open court. Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544. It is too late to object in the court of review for the first time that the action is improper in form: Marine Bank v. Fulton Bank, 2 Wall. 252, 17 L. ed. 785; Goldswith v. Koopman, C. C. A., 152 Fed. 173. That a receiver was appointed before the plaintiff had not reduced his claim to judgment. L. D. George Lumber Co. v. Daugherty, C. C. A., 214 Fed. 958. That the evidence shows usury, Ewing v. Howard, 7 Wall. 499, 19 L. ed. 293. That there was a misnomer of the plaintiff. Breedlove v. Nicolet, 7 Pet. 413, 8 L. ed. 731. That the plaintiff is not the real party in interest. Northwestern S. S. Co. v. Cochran, C. C. A., 191 Fed. 146. That the plaintiff had no legal capacity to sue. St. Louis S. W. Ry. Co. v. Henson, C. C. A., 58 Fed. 531; Coggey v. Bird, C. C. A., 209 Fed. 803.

That there was a misjoinder of parties. Historial Pub. Co. v. Jones Bros. Pub. Co., C. C. A., 231 Fed. 639. Under the former practice that there was an insufficient replication. Erskine v. Hohnbach, 14 Wall. 613, 20 L. ed. 745; or no replication,

Fretz v. Stover, 22 Wall. 198, 22 L. ed. 769; Laber v. Cooper, 7 Wall. 565, 19 L. ed. 151; Nauvoo v. Ritter, 97 U. S. 389, 24 L. ed. 1050; Central Nat. Bank of Baltimore v. Conn. Mutual Life Ins. Co., 104 U. S. 54, 26 L. ed. 693, when the case was tried as if the issues were properly raised. That there was a defect in pleading which was cured by the verdict, De Sobry v. Nicholson, 3 Wall. 420, 18 L. ed. 263; Coffey v. U. S., 116 U. S. 436, 29 L. ed. 684; San Antonio Ry. v. Wagner, 241 U. S. 476; Westinghouse v. Carlton, C. C. A., 202 Fed. 129; Duluth St. Ry. Co. v. Speaks, C. C. A., 204 Fed. 573; Law v. Illinois Cent. R. Co., C. C. A., 208 Fed. 869; Conley Camera Co. v. Multiscope & Film Co.; C. C. A., 216 Fed. 892; or findings below. The Vaughan and Telegraph, 14 Wall. 258, 20 L. ed. 807. Anglo-American Land, M. & A. Co. v. Lombard, C. C. A., 132 Fed. 721. That the complaint or findings did not show forth compliance with a condition precedent to the right to sue. Bankers' Surety Co. v. Town of Holly, 219 Fed. 96; City of Charlotte v. Atlantic Bitulithic Co., C. C. A., 228 Fed. 455; Towle v. Pullen, C. C. A., 238 Fed. 107; Reliance Const. Co. v. Hassam Paving Co., C. C. A., 248 Fed. 701. That a suit was prematurely brought. Lumbermen's Trust Co. v. Title Ins. & Inv. Co., C. C. A., 248 Fed. 212. That the proof varied from the pleadings, when the objection might have been obviated if taken below. Raberts v. Graham, 6 Wall. 578. That defendant was estopped from pleading a counterclaim. Mesa Market Co. v. Crosby, C. C. A., 174 Fed. 96. That a fact in issue essential to the judgment

was not proved, when for all that appears, proof might have been offered had the objection been seasonably made. O'Reilly v. Campbell, 116 U. S. 418, 29 L. ed. 669; Martin v. Marks, 97 U. S. 345, 24 L. ed. 940; Mercantile Trust Co. v. Hensey, 205 U. S. 298, 306, 51 L. ed. 811; Singers-Bigger v. Young, C. C. A., 166 Fed. 82, National Surety Co. v. Lincoln County, C. C. A., 238 Fed. 705; Kalloch v. Hoagland, C. C. A., 239 Fed. 252; Lohman v. Stockyards Loan Co., C. C. A., 243 Fed. 517; Couts v. U. S., C. C. A., 249 Fed. 595. But the Circuit Court of Appeals for the Fifth Circuit reversed a judg ment on a writ of error where the evidence did not justify a verdict for the plaintiff, although no direction of a verdict for the defendant was requested below, Texas & P. Ry. Co. v. Patton, 61 Fed. 259. Contra, Missouri, K. & T. Ry. Co. v. Collier, C. C. A., 157 Fed. 347. A failure to renew, after the close of defendant's evidence, a motion to dismiss, made at the close of the evidence for the plaintiff, was held not to waive an error in refusing to grant the former motion, when the defendant's evidence did not affect the point. Lydia Cotton Mills v. Prairie Cotton Co., C. C. A., 156 Fed. 235. That no leave to amend was granted when a demurrer was sustained, Childs v. Mo., K. & T. Ry. Co., C. C. A., 221 Fed. 219. But see Hodges v. Erie R. R. Co., C. C. A., 257 Fed. 494; supra, § 701. That a Mexican grant was fictitious, U. S. v. Larkin, 18 How. 557, 15 L. ed. 485. That errors then excepted to were made on the trial of an issue directed by a court of equity, where the exceptions were not brought to the attention of the court of equity