Page:Federal Reporter, 1st Series, Volume 5.djvu/509

 MABYE ». STB0U8B. 497 �not tend to prove a custom. It -would have been stricken Gut on motion. The proof of custom sought to be made ■would have been material only as tending to show that the defendant knew the rate he was charged, and for that purpose I still think it wonld have been proper. But, if error, it is plain the defendant was in no way injured by allowing the question to be answered. �The other exceptions noticed in the proposed bill of excep- tions do not appear to have been in fact taken. Neither the judge's nor reporter's notes, nor the minutee of the court, nor any writing pursuant to the twenty-fifth rule of this court, show any such exceptions to have been made. It follows that the motion for a new trial must be overruled. �Two questions of considerable importance, as aflfecting the practice of this court, remain. The first is whether, after a general finding of faot, judgment thereon, and the lapse of a term of court, special findings can now be substituted for, or added to, the general finding. Counsel insist that this court was bound to make a special finding of facts, beoause a stat- ute of Nevada requires the judge who tries a cause without a jury to state the facts and conclusions of law separa tely, (Comp. Laws, § 1243,) which statute, it is said, must be con- sidered as adopted by the act of congress conforming the practice and mode of procedure in United States courts to that in the state courts. It bas always been held in this court that ail such matters as bave been regulated by con- gress expressly, are to be taben as the rule of action in case of conflict with a state statute. But, however this may be, the point in question bas been settled by the supreme court, and it is idleto discuss it further. The circuit court is not required to make a special finding, even when requested to do 80. Ins. Co. V. Folsom, 18 Wall. 249. �The act of March 3, 1865, (section 649, Rev. St.,) allows the finding to be either general or special. If an application for special findings had been made at the trial, it would doubt- lesB have been granted; but I do not see how, consistently with the rules of law governing amendments ofjudgments and records, such a finding of facts can now be made and �v.5,no.6— 32 ����