Page:Federal Reporter, 1st Series, Volume 6.djvu/672

 660 FBDBBAL BEPOBTEB. �ing altogether anknown in the common l&vr', and it is well Bettled tbat, in the absence of a Btatate authorizing that mode of proceeding, no exception can be taken to any opinion of the court upon admission or rejection of testimony, or upon any other question of law whioh may grow ont of the evidence ■where no jury is empanelled. Campbell v. Boqreau, 21 How. 226 ; Blair v. Allen, 3 Dillon, 101 ; Kelsey v. Forsythe, 21 How. 85; Geld v. Frontir, 18 How. 135; Burr v. Des Moines, etc., 1 Wall. 99. . ' �The doctrine of these cases is not disputed by counsel for plaintiff in orror, and he admits that they are ponclusive of the question, unless the provisions of section 914 of the Ee- YIsed Statutes of the United States are applicable to and decisive of the controversy. That section provides that "the practice, pleadings, and forms and modes of proceeding in «ivil causes, other than equity and admi;ralty causes, in the circuit and district courts, shall oonform, as uear as may be, to the prftQtice, pleadings, and forms, jE^nd; modes of proceed- iugs existing at the time in like causas in the courts of rec- ord, of the e(tate within ^rhich such circuit or district . courts �: are heid, any rule of court to t^e contrary notwithst^i^ding." It ia veyy olear th%t th^s section goea ijoifurth^r than tp pro- �,yide a geperal rule regulating practiceand procedure, in the federal courts, in the absence of any express congressional enactment upon the subject. It, .does not ,by implication repeal any previous aot of cpngress expressly requiring a par- ticular mode of proceeding in any givencase ccr clasa of eases. Section 566 of the Eevised Statutes (which, in my judgment, was not repealed by the later act embodied in section 914) provides that "the trial of issues of fact in the district courts, in ail causes except cases in equity and cases of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, shall be by jury." Section 649 of the Eevised Statutes provides that "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 par- ties, or their attorneys of record, file with the elerk a stipula- tion in writing waiving a jury." This provision, however, ��� �