§ 2240. The supreme court will not notice the assignment that the court did not find the distinct facts requested by the plaintiff in error; as the lower court declined to find the facts, the supreme court assumes they were not established by the evidence. Clark v. Fredericks, 15 Otto, 4.

§ 2241. Where, in a town site case, the decision of the probate court of Utah was appealed to the territorial district court, which latter court made a finding of facts and rendered judgment, and the case was appealed to the supreme court of the territory, and was heard and decided upon the findings of the district court, and its judgment affirmed, it was held, on appeal to the supreme court of the United States, that the supreme court of Utah had in effect adopted the findings of the district court as its own, and that the case would be heard in the supreme court of the United States on such findings. Stringfellow v. Cain, 9 Otto, 612; Cannon v. Pratt, id., 621.

§ 2242. On a writ of error to the circuit court, in an action where there was no general verdict, and no special verdict in a form known to the common law, and no waiver of a jury or finding of facts as required by law, the supreme court, on the filing of a written stipulation presenting the facts, reviewed the case, reversed the judgment against the plaintiff, and directed an entry of judgment against the defendant. Geekie v. Kirby Carpenter Company, 16 Otto, 383.

§ 2243. The findings of the court below, in the nature of a special verdict, which depend upon the construction of public acts, diplomatic dispatches and treaty stipulations, are conclusions of law rather than of fact, and as such may be reviewed by the supreme court on appeal. Meade v. United States, 9 Wall., 721.

§ 2244. On the evidence.- A deed was offered in evidence, and, on objection to its execution, was rejected. It was subsequently offered in evidence, with further proofs of its execution, and admitted without objection. Held, that it must be presumed, if the additional proofs are not set forth in the record, they were sufficient to prove the execution of the deed, not only because not objected to, but because the other party introduced evidence to show it was fraudulent and void, which evidence would otherwise become immaterial; that although the first rejection of the deed may have been wrong, yet if it was offered for the same purpose the second time, its subsequent admission cured the error. But in this case, as the cause must have been sent back for another reason, the court deemed it advisable to pass upon the sufficiency of the acknowledgment of the deed. Hinde v. Longworth, 11 Wheat., 206.

§ 2245. The pertinency of an answer which could not have affected the verdict in the court below will not be considered by the supreme court. Rogers v. The Marshal, 1 Wall., 654.

§ 2246. Where no exception was taken in the court below to the competency or sufficiency of the evidence, either generally or for any particular purpose, it will not be considered by the supreme court, though presented in full in the bill of exceptions. Pennock v. Dialogue, 2 Pet., 15.

§ 2247. On a writ of error to the circuit court, the supreme court cannot presume, in support of the verdict, that a defect in the declaration in the action was cured by the admission of proper evidence, where it expressly appears in the record that no such proof was offered. Washington v. Ogden, 1 Black, 456.

§ 2248. Where no objection was made in the superior court of the territory of Florida to the authenticity of title papers relied on to support a grant, and they were introduced without objection, the supreme court on appeal will not inquire into their authenticity, especially as the grant was Spanish, and the paper in question was passed upon by a Spanish tribunal in making the grant. United States v. Delespine, 15 Pet., 330.

§ 2249. Matters of practice.-Generally speaking, matters of practice in inferior courts do not constitute subjects upon which error can be assigned in the appellate court. Parsons v. Bedford,* 3 Pet., 433.

§ 2250. The act of May 26, 1824, conforming the practice in the federal courts sitting in Louisiana to the modes of procedure in the state courts, as regulated by state laws, makes it obligatory upon the federal courts to follow the state practice, unless they have adopted rules modifying or suspending the operation of the state practice. But where the error complained of was the refusal of the court to take down the evidence in a jury trial, but no bill of exceptions was taken, and no point of law brought up for review, it was held that the supreme court could not revise the judgment. It was not the intention of congress, by the act of 1824, to alter the appellate jurisdiction of the supreme court, and to confer on it the power of granting a new trial by a re-examination of the facts tried by a jury. Ibid.

$2251. The judgment of the supreme court of a territory on the effect of the territorial code of procedure will not be reversed by the supreme court of the United States on a writ of Langford v. Montieth, 12 Otto, 148.

error.

§2252. Where the question arising in the territorial court was whether an action on a replevin bond given to a sheriff should have been brought by the sheriff or by the party for

whose benefit it was given, the supreme court held that, as the case was one arising under the territorial code of practice, and one in which there is great conflict of authority in the different states, the decision of the territorial supreme court was conclusive. Sweeney v. Lomme, 22 Wall., 212.

§ 2253. Where, in an equitable action removed from the state courts, the pleadings and proceedings have followed the state code of procedure, the supreme court will take jurisdiction thereof on appeal and decide the case on the merits, if apparent from the record. Gridley v. Westbrook, 23 How., 504.

§ 2254. Instructions to the jury.- The supreme court upon a writ of error to the circuit court will not look into and examine the testimony to discover whether the judge in his charge to the jury omitted any material point. Armstrong v. Toler, 11 Wheat., 276.

§ 2255. In this case a subject not noticed by the judge in his charge to the jury was not considered by the supreme court for that reason. Walker v. Turner, 9 Wheat., 552.

§2256. The supreme court will not pass upon the question whether there was evidence sufficient to warrant an instruction, although the ground was taken on a motion for a non-suit, and no exception taken. Garrard v. Reynolds,* 4 How., 123.

§ 2257. An alleged error in giving or refusing instructions will not be reviewed by the appellate court unless all the instructions given and refused on this branch of the case are before it. Cheatham v. Wilber,* 1 Dak. T., 348.

§ 2258. Where the proofs on which the court below instructed the jury as to a certain point are not before the supreme court on error, the instructions will not be considered. Anderson v. Bock, 15 How., 329.

§ 2259. It seems that an instruction which became immaterial will not be considered by the appellate court on a writ of error. Kimbro v. Bullitt, 22 How., 269.

§ 2260. Mere verbal criticisms of the charge of a judge are not entitled to any considerable weight in a court of errors. Such courts look at the substance and legal effect of the language employed, without much regard to mere inaccuracies of expression, unless the error is one which might prejudice the rights of the party seeking redress. First Unitarian Society v. Faulkner, 1 Otto, 421.

§ 2261. Where counsel on both sides in a case stipulate that the trial judge shall decide a certain part of a case as a matter of fact, and he gives effect to such finding in the only way he could do so under the state practice, viz., by directing the jury to decide in a particular manner, such instruction is not reviewable on writ of error. Bowen v. Chase, 8 Otto,

264.

§ 2262. It is no ground for the reversal of a judgment that the court below omitted to instruct the jury on a point of law arising in the case, if not requested to do so by one of the parties. It is sufficient for the supreme court that no erroneous instructions have been given. The appellate court cannot be expected to do more than pass upon the points raised by the parties themselves on the trial. Pennock v. Dialogue, 2 Pet., 15.

§ 2263. The supreme court upon a writ of error can only reverse a judgment for an instruction given, when it is shown that the court below erred. It cannot proceed to conjecture what the court may have laid down as the law; it must be shown in order to be judged what instructions were in fact given, and what were refused. Bradstreet v. Huntington, 5 Pet., 438.

§ 2264. The mere omission of the circuit court to charge the jury on some one of the points of a case, where it does not appear that the party feeling himself aggrieved made any request of the court on the subject, cannot be assigned for error. Express Company v. Kountze, 8 Wall., 354.

§ 2265. The declaration in an action contained general and special counts on the same contract. An instruction as to the special counts, that the contract set forth in them was void, was asked by the defendants and was refused. A verdict was rendered in favor of the defendants on the special counts, and in favor of the plaintiff on the general count. Held, that although the instruction was offered as to the special counts only, yet as there was only one contract between the parties, exceptions would be considered by the supreme court as if the instruction had been offered as to the general count. Tool Company v. Norris, 2 Wall., 53. § 2266. An instruction to the jury, which, if erroneous at all, is favorable to the plaintiff in error, will not be examined by the supreme court on a writ of error. Walker v. Turner, 9 Wheat., 552.

2267. The rule of a court, that a special charge or instruction to the jury must be presented to the court before the case is argued to the jury, is a reasonable one, and its enforcement rests in the discretion of the court. The refusal of the court to receive such prayers for instructions to the jury after the case was summed up is a reasonable exercise of discretion which is not reviewable by the supreme court. Life Insurance Company v. Francisco, 17 Wall., 679.

2268. Where, upon the undisputed facts of a case, it is apparent to the supreme court that the court properly directed the jury to find for the plaintiffs, assignments of error on instructions in the court below are immaterial and will not be considered. Walbrun v. Bab

bitt, 16 Wall., 580.

§ 2269. It seems that a judge cannot be required to declare the law upon hypothetical questions which do not belong to the cause on trial. The court may at any time refuse to give an opinion on such a point, and if the party propounding the question is dissatisfied, he may except to the refusal, and the refusal will avail him if he shows that the question was warranted by the testimony, and the opinion he asked ought to have been given. But if the judge proceeds to state the law, and states it erroneously, his opinion ought to be revised, and if it can have had any influence on the jury, their verdict ought to be set aside. Etting v. Bank of United States, 11 Wheat., 74.

§ 2270. New trial.- The ruling of the court on a motion for a new trial or in arrest of judgment is not reviewable. Hall v. Weare, 2 Otto, 732; Marine Ins. Co. v. Young, 5 Cr., 191; Laber v. Cooper, 7 Wall., 565 (§§ 1761–65); Railroad Co. v. Heck, 12 Otto, 120 (§§ 1766–67); Railroad Co. v. Twombly,* 10 Otto, 78; Jones v. Buckell, 14 Otto, 554 (§§ 1932–33); Blunt v. Smith, 7 Wheat., 272; Gove v. Moses,* 1. Wash. Ty., 15; Mulhall v. Keenan, 18 Wall., 350; Schuchardt v. Allens, 1 Wall., 371; Chicago v. Greer, 9 Wall., 735. The law of June 1, 1872, cannot be held to have changed the general rule. Newcomb v. Wood, 7 Otto, 583.

§ 2271. Where a final judgment was entered for a party, and was erroneously set aside and a new trial ordered, the judgment entered on the new trial in favor of the other party was set aside, and the original judgment affirmed. Coughlin v. District of Columbia,* 16 Otto, 7. § 2272. The granting or refusing of a motion for an arrest of judgment and for a repleader because a verdict was rendered on an immaterial issue formed by the replication to one of two pleas, setting up substantially the same defense, is a matter of discretion, because the motion is substantially one for a new trial, and the supreme court will not review a decision thereon. Erskine v. Hohnback, 14 Wall., 618.

§ 2273. Matters of discretion. The decision of an inferior court on a matter within its discretion is not reviewable by an appellate court. Liter v. Green, 2 Wheat., 308.

§ 2274. The action of the trial judge in allowing another juror to be called and sworn, to take the place of one physically incapable to sit, after the plaintiff's counsel had opened his case, but before he had closed, and with the plaintiff's consent, the defendant not electing to consider it as a breaking up of the panel, was a matter of discretion for which error cannot be assigned. Silsby v. Foote, 13 How., 219.

§ 2275. Where there was an agreement to confess judgment on file in a court in a proceeding to foreclose a mortgage, and at a subsequent term the court allowed judgment to be entered nunc pro tunc, this was a matter of discretion not reviewable in any court. Slicer v. Bank of Pittsburgh, 16 How., 578.

§ 2276. A motion, in the court below, to stay execution because a creditor of the judgment creditor had attached the debt in the hands of the judgment debtor, is a question addressed to the sound discretion of the court, and will not be reviewed by the supreme court on a writ of error. Early v. Rogers, 16 How., 609,

§ 2277. The decision of the circuit court that no damages should be allowed on a bond given on obtaining an injunction is a matter so nearly within the judicial discretion of the trial court that its decision will be reviewed only on a clear showing that it is erroneous. Russell v. Farley, 15 Otto, 416.

§ 2278. Any irregularities in the conduct of the jury in the court below, such as would lead to an application to set aside the verdict, are for the consideration of the trial court, and within its discretion, and the decision of such court is not examinable by the appellate court. United States v. Gillies, Pet. C. C., 159; S. C., 3 Wheeler, 309.

§ 2279. The action of the court below in not requiring the payment of costs as a condition for allowing an amendment to the declaration after a non-suit cannot be reviewed by the appellate court on a writ of error. Wright v. Hollingsworth, 1 Pet., 169.

$2280. In equity cases costs are in the discretion of the court, and the action of the trial court in the matter of costs will not be reviewed on appeal. Wiegand v. Copeland, 7 Saw., 447.

§ 2281. A motion and order for judgment, and a motion and order to set aside such judgment, made in a circuit court in California, are matters within the discretion of such court, and are not reviewable in the supreme court upon a writ of error; and this results not only from the general rule applicable to all cases, but also by the special statute applicable to the circuit courts of California. Cheang-Kee v. United States, 3 Wall., 326.

§ 2282. An application in the court below to be permitted to supply a lost petition on proof of such loss is addressed to the discretion of the court, and its action thereon cannot be assigned for error. Cook v. Burnley, 11 Wall., 676.

§ 2283. The failure of the circuit court, after decree of foreclosure and sale, to revive an action before the confirmation of the sale, upon the suggestion of the death of a defendant, is not a matter of error for which the proceedings on the sale under the original decree can be reversed. Whiting v. Bank of United States, 13 Pet., 16.

§ 2284. Motions made during the trial of a case for a change of venue or for a postponement are not assignable for error. Cook v. Burnley, 11 Wall., 672; McFaul v. Ramsay, 20 How., 527.

§ 2285. The denial of a motion for non-suit in the district court is not reviewable by the circuit court on writ of error. Miller v. Jones,* 15 N. B. R., 152.

§ 2286. The decision of the trial court as to the plaintiff's right to open and close the case is not reviewable by the appellate court. Hall v. Weare, 2 Otto, 732; Day v. Woodworth, 13 How., 370.

§ 2287. The refusal of the circuit court to allow further time for the production of testimony is within its discretion, and its action will not be reviewed by the supreme court. Gilman v. Illinois & Miss. Tel. Co., 1 Otto, 614.

§ 2288. The decisions of the circuit courts of the United States as to the order of introducing evidence, and the times when it is to be introduced, will not be revised by the supreme court, for the reason that these are matters of discretion and practice over which the revisory power of the supreme court does not extend. Philadelphia & Trenton R'y Co. v. Stimpson, 14 Pet., 463.

§ 2289.

continuance.- A motion for a continuance is addressed to the discretion of the court. Thompson v. Selden, 20 How., 194; McFaul v. Ramsay, 20 How., 527; Woods v. Young, 4 Cr., 237; Henderson v. Moore, 5 Cr., 12; Campbell v. Strong, Hemp., 266; Sims v. Hundley, 6 How., 6.

$ 2290. on the pleadings.-The refusal of an inferior court to permit the filing of additional pleas cannot be assigned as error; neither, it seems, can a refusal to modify a plea, or to continue the case, or to grant a new trial. These are matters depending so much on the discretion of the court below, that they must be regulated there by the particular circumstances of each case. Marine Insurance Co. v. Hodgson, 6 Cr., 217.

$ 2291. An action was commenced in the district court for the possession of land, and the petition showed that the plaintiffs were citizens of Kentucky and the defendants were citizens of Texas. The defendants pleaded the statute of limitations in bar. Subsequently the defendants asked and obtained leave to withdraw their plea in bar and to substitute a plea in abatement to the jurisdiction, in which they alleged that the allegation of the plaintiffs' citizenship was false and fraudulent, and that they were citizens of Texas. The plaintiffs moved for judgment for want of a plea, and on their motion being overruled, refused to reply to the plea in abatement. A jury having found that the plaintiffs were citizens of Texas, the petition was dismissed. The supreme court, on writ of error, held that the action of the court in allowing the plea in bar to be withdrawn and the plea in abatement substituted was within its power and discretion, and was not the subject of revision on writ of error. Eberly v. Moore, 24 How., 157.

§ 2292. The action of an inferior court in refusing leave to answer after default is within the discretion of the court, and will not be revised by the supreme court. Dean v. Mason, 20 How., 204.

§ 2293. An application for leave to file a plea in abatement, after having filed a plea in bar, is addressed to the judicial discretion of the lower court, and its decision thereon is not open for revision in the supreme court. Spencer v. Lapsley, 20 How., 267.

§ 2294. The action of the court below in permitting a supplemental answer to be filed in an equity case sent back from the supreme court, is a matter resting in the discretion of the court, and is not reviewable by the supreme court on appeal. Williams v. Gibbes, 20 How., 541.

$2295. The territorial supreme court will not review the judgment of the district court refusing to permit the party in default before a justice of the peace to file an answer in the district court on appeal from the justice. Crandall v. Piette,* 1 Oreg., 226. § 2296. An order from the circuit court striking out an answer may be reviewed by the supreme court on a writ of error; but it seems that an order to make an answer more specific, and a refusal to allow time to perfect an answer, are both within the discretion of the lower court and not therefore reviewable. Fuller v. Claflin, 3 Otto, 15.

§ 2297. A motion for leave to withdraw a replication and file a new one is addressed to the discretion of the trial court, and its action thereon is not subject to review by an appellate court on a writ of error. United States v. Buford, 3 Pet., 31.

$ 2298. amendments.- The allowance or disallowance of amendments is a matter of discretion, and is not assignable for error. Fowler v. Colton,* 1 Pin. (Wis.), 337; Brown v. The Cadmus, 2 Paine, 566.

§ 2299. The allowance of a motion to amend formal defects in a pleading is never the subject of error. Jenkins v. Banning,* 23 How., 455.

§ 2300. An application to amend a declaration, by adding other counts, is addressed to the discretion of the trial court, and consequently the ruling in that respect is not subject to exceptions or to a writ of error. McGlinchy v. United States, 4 Cliff., 318.

§ 2301. Where the circuit court gave a party leave to amend on terms which he declined to accept, the terms imposed being within the discretion of the circuit court, its action will not be reviewed. Sheets v. Selden, 7 Wall., 421.

§ 2302. The supreme court will not review the action of the circuit court in an ejectment suit in allowing, after a non-suit, an amendment to be made to the declaration, adding a new count alleging a demise by a person not named in the original counts. The allowance and refusal of amendments to the pleadings, and the granting or refusing new trials, are matters so peculiarly addressed to the sound discretion of courts of original jurisdiction as to be fit only for their decision under their own rules and modes of practice. Wright v. Hollingsworth, 1 Pet., 168.

§ 2303. An act of discretion in the circuit court in the amendment of its records is not reviewable by the supreme court on a writ of error. After verdict in the circuit court a motion was made in arrest of judgment for a misjoinder of counts in the declaration, and the verdict was arrested, but no order that the plaintiff take nothing by his writ, non obstante veredicto, was entered. Two terms later, on motion, the circuit court set aside the order arresting judgment, allowed a nolle to be entered as to one count, ordered the verdict to stand as to the other count, which was supported by evidence, and entered judgment thereon nunc pro tunc. Held, that this was a proper amendment of the records and verdict within the discretion of the circuit court, and that it was not reviewable by the appellate court. Matheson v. Grant, 2 How., 279.

§ 2304. Where an attachment is sued out in the circuit court, and leave is granted to amend the affidavit by inserting new grounds, the supreme court will not review the action of the court below, it appearing that the defendant was not prejudiced, and that the state law allowed amendments of defective affidavits. Fitzpatrick v. Flannagan, 16 Otto, 650.

§ 2305. If the record shows anything to amend by, a court may amend a clerical error or misprision at any distance of time, and without notice to the parties, and its act in such a case cannot be assigned for error in an appellate court. Cromwell v. Bank of Pittsburgh, 2 Wall. Jr., 586. See, also, §§ 1728, 2103, 2104.

XVII. REVERSAL AND AFFIRMANCE IN APPELLATE COURT.

SUMMARY-On questions of fact, § 2306.- On the credibility of witnesses, § 2307.- Error in construing rules, § 2308.-- Trial without a jury, § 2309.

§ 2306. A judgment will not be reversed on a question of fact. § 2310. See § 2605 et seq.

United States v. Dawson,

§ 2307. Where the decision of the district judge is based entirely upon his finding upon a disputed question of fact, and no error is alleged in his application of the law to the facts, the circuit court will not reverse merely on a doubt founded on the number or credibility of the witnesses. The burden is on the appellant to show some mistake made by the judge below in the law or the evidence. Baker v. Smith, § 2311.

§ 2308. If the court below errs in its construction of the rules made by the supreme court, its decision will be reversed and the cause remanded. Poultney v. City of Lafayette, § 2312. § 2309. In case of a seizure on land, the claimant is entitled to a jury trial if he appears and files an answer denying the facts set forth in the information; and where the claimant's answer is stricken out, and the court refuses leave to amend, but proceeds to enter a decree of condemnation, this is an error which will warrant a reversal. Garnharts v. United States, § 2313.

[NOTES.-See SS 2314-2430.]

UNITED STATES v. DAWSON.

(11 Otto, 569, 570. 1879.)

ERROR to U. S. Circuit Court, District of Maryland.

Opinion by MR. JUSTICE MILLER.

STATEMENT OF FACTS.- This was an action on the bond of a collector of internal revenue. After the suit was brought, amicable continuances were