not reviewable either on a writ of errer or on appeal in equity, unless
the record discloses the ruling made, and the taking of an exception
thereto, and there is a specific assignment of error on that ground.
-Kalamazoo Ry. Supply Co. v. Duff Mfg. Co., 113 Fed. 264..
51 C. C. A. 221
An assignment of errr complaining of an erroneous instruction is
without merit where the court, on plaintiff's exception, qualified the in-
struction, and plaintiff took no further exception.
-Metropolitan St. Ry. Co. v. Hudson, 113 Fed. 449...51 C. C. A. 283
Where objecti ns to the form of a petition for a writ of habeas
corpus are not urged in the district court, they will not be considered
on appeal.
-United States v. Lee Yen Tai, 113 Fed. 465.........51 C. C. A. 299
A charge to which no exception was taken at the time cannot be re-
viewed on a writ of error.
-Bradford Glycerine Co. v. Kizer, 113 Fed. 894.......51 C. C. A. 524
An exception reserved "to the court's refusal to charge such of the
requests as were not charged" does not raise any point for review as to
any of the charges so refused.
-Kaufmann v. United States, 113 Fed. 919..........51 C. C. A. 549
The statement of facts in a bill of exceptions is conclusive in an
appellate court unless it is excepted to and the exceptions are recorded
in the bill when it is settled.
-Purple v. Union Pac. R. Co., 114 Fed. 123..........51 C. C. A. 564
§ 3. Record and proceedings not in record.
The failure of the trial court to give instructions requested cannot be
assigned for error or considered by the appellate court unless it appears
from the bill of exceptions that such instructions were requested and
refused, and exceptions to such refusal were duly taken.
-Jack v. Mutual Reserve Fund Life Ass'n, 113 Fed. 49..
An appellate court cannot consider statements of fact in the assign-
ments of error not shown by the bill of exceptions.
-Jack v. Mutual Reserve Fund Life Ass'n, 113 Fed. 49.
A circuit court has no power to determine what shall be incorporated
in a transcript of the record sent up on a writ of error to the circuit court
of appeals, and its action in directing the incorporation therein of tes-
timony which it excluded as incompetent on the trial, and which is not
contained in the bill of exceptions, is erroneous; but the error is harm-
less, and is not ground for a reversal of its judgment.
-West v. East Coast Cedar Co., 113 Fed. 737.........51 C. C. A. 411
§ 4. Assignment of errors.
Assignments of error, on an appeal to the circuit court of appeals
from an order in habeas corpus proceedings discharging a prisoner,
that the trial court erred in discharging the prisoner, and in not order-
ing him back into custody, and in not dissolving the writ, are insuffi-
cient in not setting out particularly the error intended to be urged, as
required by rule of the court.
-United States v. Lee Yen Tai, 113 Fed. 465.........51 C. C. A. 299
§ 5. Briefs.
A party, by adopting and making part of its brief on appeal the
statement of the court, in its opinion refusing new trial, wherein it was
alleged that the evidence showed the woodwork could be put in condi-
tion for $500, admits there was evidence of defects,
-Pitcairn v. Philip Hiss Co., 113 Fed. 492....
Where a jury is waived by stipulation in an action at law in the
circuit court, and no exception is taken to any ruling made during the
trial, the only exceptions being to the findings and conclusion of law,
and the refusal to find conclusions of law as requested, the only ques-
tion reviewable in the appellate court is whether the judgment is war-
ranted by the pleadings and the findings of fact.
-Adam v. New York Life Ins. Co., 113 Fed. 303......51 C. C. A. 263
A decree dismissing a bill upon a general demurrer thereto must be
presumed to have been passed upon the merits, and not for want of
jurisdiction, in the absence of any statement therein to the contrary.
-Bradford Belting Co. v. Kisinger-Ison Co., 113 Fed. 811..
Discretion of lower court.
A refusal to reinstate a cause after dismissal is in the discretion of the
court, and not reviewable on writ of error.
-Dexter v. Kellas, 113 Fed. 48...
The refusal to postpone a trial is within the discretion of the court,
and will not be reviewed on error unless the discretion has been abused.
-Dexter v. Kellas, 113 Fed. 48..
..51 C. C. A. 35
Refusal to grant continuance cannot be reviewed, in the absence of a
showing of abuse of discretion.
-Lyman v. Warner, 113 Fed. 87......
An interlocutory order granting a preliminary injunction is largely
discretionary, and will not be reversed on appeal unless it appears to
have been improvidently entered.
-Bartholomew v. Union Paper & Bag Co., 113 Fed. 289.
51 C. C. A. 250
Appellate courts will not interfere with the discretion of the courts
below in fixing the compensation of receivers and their counsel unless
it has been abused.
-Braman v. Farmers' Loan & Trust Co., 114 Fed. 18. .51 C. C. A. 644
Questions of fact, verdicts, and findings.
Where, in an action for the death of plaintiff's intestate, the instruc-
tions are proper, and the record shows no attempt to magnify the in-
jury or pain, nor any appeal to the passion, prejudice, or sympathy of
the jury, nor indication that the jurors were so influenced, the appellate
court will not disturb a verdict on the ground of excessive damages.
-Southern Ry. Co. v. Craig, 113 Fed. 76...... .......51 C. C. A. 63
Where an injunction and receiver were properly awarded on the bill,
affidavits, and exhibits presented by complainants, and the answer and
testimony presented by defendants on their application to set aside such
order did not materially change the case, and the application was de-
nied, though the evidence is conflicting, it not being plainly apparent
that the court erred in entering the orders, they should not be reversed.
-Universal Savings & Trust Co. v. Stoneburner, 113 Fed. 251......
51 C. C. A. 208
Findings of fact made by the trial court in a suit in equity on con-
flicting evidence, while not absolutely conclusive upon an appellate
court, are very persuasive, and will not be disturbed except on a very
satisfactory showing.
-Harding v. Hart, 113 Fed. 304....
Where a cause is tried by a circuit court without a jury, by stipulation,
and no special finding of facts is made, the general finding must be
accepted by the appellate court as conclusive upon all matters of fact,
the same as the verdict of a jury, and the only questions reviewable are
the rulings of law on the trial and the sufficiency of the pleadings to
support the judgment.
-West v. East Coast Cedar Co., 113 Fed. 737........51 C. C. A. 411
Under the rule that a plaintiff in ejectment can only recover on the
strength of his own title, a judgment for defendant in such an action,
tried in a circuit court without a jury, based on a general finding in
defendant's favor, cannot be disturbed by the appellate court, where the
validity of plaintiff's title was put in issue by the pleadings, and under
the evidence such issues depended on questions of fact.
-West v. East Coast Cedar Co., 113 Fed. 737........51 C. C. A. 411
The circuit court of appeals cannot review the discretion of the court
below in refusing a new trial sought on the ground that the verdict was
against the evidence.
-Manhattan Oil Co. v. Richardson Lubricating Co., 113 Fed. 923...
51 C. C. A. 553
On the trial of an action to the court, the reception of irrelevant evi-
dence, which does not appear to have influenced the court's decision, is
not ground for reversal.
-West v. East Coast Cedar Co., 113 Fed. 737...................51 C. C. A. 411
The admission of a certified copy of the "general description of the
survey" of the township in which the land in controversy was situated,
containing no reference to the particular land, but referring in general
terms to the township, stating that it was mountainous, and that con-
siderable placer mining had been done along a certain creek, and ex-
pressing the opinion that undeveloped quartz ledges existed in the ridges,
even if error, could not have prejudiced plaintiff.
-United States v. Van Winkle, 113 Fed. 903..........51 C. C. A. 533
Error in charging that the factory statute had no application to a com-
mercial ice house was harmless, where the court further charged that
it was a rule of common law, irrespective of statute, that machinery
must be safe, and that in the case of a set screw (the instrument by
which plaintiff was injured) it might be dangerous or safe according to
its situation, and according to the parties called on to work on the
machine, and therefore left to the jury to determine as a question of
fact whether the screw was dangerous or safe, the state courts having
construed the statute as not imposing duties on an employer greater
than those imposed by the common law, etc.
-Rabe v. Consolidated Ice Co., 113 Fed. 905..........51 C. C. A. 535
Of trustee in bankruptcy, see "Bankruptcy," § 3.
The scope of the submission, as to the matters to be considered and
included in the award, was a matter to be determined by the arbitrators,
and the presumption is in favor of the correctness of their determination;
to impeach their award, it must be clearly shown that they exceeded the
powers granted.
-Republic of Colombia v. Cauca Co., 113 Fed. 1020; Cauca Co. v. Re-
public of Colombia, Id.......
...51 C. C. A. 604
A provision in the articles of submission for payment of the expenses
of the commission, and authorizing a finding by the award whether they
should be paid by one or both the parties, did not authorize the commission
to allow a fee to the attorney for the company as costs, and direct its
payment by the other party.
-Republic of Colombia v. Cauca Co., 113 Fed. 1020; Cauca Co. v. Re-
public of Colombia, Id.......
.....51 C. C. A. 604
The articles of submission provided that the company should receive a
"just indemnity" for the works and labors connected with the railway en-
terprise, to be determined by the commission, and it was given authority
to examine the books and accounts of the company, and all documents
which might be submitted by the parties, and also to appraise the struc-
tures, works, and materials. Prior to such agreement, the company had
refused to settle on the basis of the actual cost of the physical construc-
tion of the road, and the government had offered in settlement a sum
considerably in excess of such valuation as subsequently made by the
commission, and as to which there was no controversy. Held, that the
articles of submission, agreed to under such circumstances, in the absence
of express provision to the contrary, must be construed to authorize the
commission to take into consideration, in determining the just indemnity
to be awarded the company, the other outlays made by it in the prosecu-
tion of the enterprise, in addition to the cost of the physical structures
delivered to the government, such as the salaries paid its officers, its
office and traveling expenses, and the amount paid by it to the original
grantee for the concession, and that an award covering such items should
not be set aside in the absence of any evidence to impeach the good faith
of the commissioners.
-Republic of Colombia v. Cauca Co., 113 Fed. 1020; Cauca Co. v. Re-
public of Colombia, Id......
...51 C. C. A. 604
The articles, however, having made no provision for the allowance of
Interest, and the company having been in possession of the road and re-
ceiving its revenues up to the time of the settlement, the allowance of
interest on any of the expenditures made by the company was not within
the scope of the submission; but the erroneous allowance of such interest
did not vitiate the award as a whole, the items being separately specified,
so as to be readily separable.
-Republic of Colombia v. Cauca Co., 113 Fed. 1020; Cauca Co. v. Re-
public of Colombia, Id... . . . .
.51 C. C. A. 604
§ 2. Arbitrators and proceedings.
The government of the republic of Colombia granted a concession to a
citizen of the United States to construct and operate a railroad in that
country, and such concession was, with the consent of the government,
assigned to a corporation of West Virginia, which proceeded to construct
and equip a portion of the road. A controversy having arisen, the gov-
ernment sought to revoke the concession, and the matter became a subject
of diplomatic correspondence between the Colombian government and the
state department of the United States. The Colombian congress subse-
quently passed an act authorizing the government to enter into an agree-
ment with the company for an equitable adjustment of the differences
between them, conditioned upon the surrender by the company of its con-
cession, and the delivery of all its road and property to the government.
In accordance with such act, an agreement for settlement and arbitration
was entered into, by which the company surrendered its franchises and
property on receipt of a cash payment of $200,000, and a commission was
created, composed of three members; one appointed by each of the par-
ties, and the third selected by the secretary of state of the United States
and the Colombian minister at Washington, acting jointly. The commis-
sion was given power to regulate its own procedure, and was required to
determine the amount of just indemnity to which the company was enti-
tled for the works and labors executed during the time the enterprise had
been in its charge, its award to be final. The commission was given ex-
tensive powers, to inspect the property, take testimony, and examine all
the books and records of the company. Held, that under such circumstan-
ces, the matter being in the nature of a public controversy, and the com-
mission having been appointed in pursuance of a public law, for the ex-
pressed purpose of making an equitable adjustment of the matters in dis-
pute, and in view of the manner of selection of the third member, the
articles of submission could not be construed, in the absence of an ex-
press provision therefor, to require a unanimous decision in order to render
the award valid, but that, the commission having unanimously agreed
that all matters should be determined by a majority vote, an award so
made, upon matters heard and considered by the entire commission, was
binding on the parties.
-Republic of Colombia v. Cauca Co., 113 Fed. 1020; Cauca Co. v. Re
public of Colombia, Id.......
..51 C. C. A. 601
The final sessions of the commission were held in New York. After ali
the testimony had been taken, and all the matters in controversy had beer
argued by the parties and considered by the commission, and a final vote
thereon was about to be taken, and after a number of the items of the
award had been agreed upon, some unanimously and some by a majority
vote, the member of the commission appointed by the Colombian govern-
ment wrote a letter to his government resigning his position. He deliv-
ered a copy of such letter to his colleagues, and refused to take any fur-
ther part in the proceedings. There was not sufficient time remaining
before the award was required to be made by the articles of submission
to permit of the vacancy being filled in the manner therein provided.
Held, that such resignation, which was not in fact shown to have ever
been forwarded to, or accepted by, his government, did not of itself cre-
ate a vacancy, and would not be given effect to terminate the existence
of the commission, and render nugatory its award, made on the same day,
by the concurring votes of the other members.
-Republic of Colombia v. Cauca Co., 113 Fed. 1020; Cauca Co. v. Re-
public of Colombia, Id.
..51 C. C. A. 604
A court-martial is a court of inferior and limited jurisdiction. Proof
(1) that it was convened by an officer empowered by the statutes to call
it; (2) that the officers whom he commanded to sit upon it were of those
whom he was authorized to detail for that purpose; (3) that the court
thus constituted was vested with power to try the person and the offense
charged; and (4) that its sentence was in conformity to the statutes,-
is indispensable to its jurisdiction and to the validity of its judgment
or sentence.
-Deming v. McClaughry, 113 Fed. 639......
No officer is authorized, but every officer is forbidden, to constitute of
officers of the regular army a court-martial to try a volunteer, and the
judgment of such a court-martial against a volunteer is without juris-
diction and void.
-Deming v. McClaughry, 113 Fed. 639......
Officers of the regular army are incompetent, under the seventy-
seventh article of war, to try the officers or soldiers of the volunteer
forces raised under the acts of April 22, 1898, and March 2, 1899 (30
Stat. 361, c. 187; Id. 977, c. 352).
-Deming v. McClaughry, 113 Fed. 639.
Of damages, see "Damages," § 3.
Of tax, see "Taxation," § 1.
See "Appeal and Error," § 4.
Fraud as to creditors, see "Fraudulent Conveyances."
In bankruptcy, see "Bankruptcy," § 4.
Of patents, see "Patents," § 3.
Of trade-marks or trade-names, see "Trade-Marks and Trade-Names," § 1.
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