406. In Common Law States a General Issue Plea Does Not Traverse the Jurisdictional Averments.-In States which retain the common law system of pleading the general issue plea does not traverse the jurisdictional averments of the declaration. In accordance with the Conformity Statute, if in the Federal Court sitting in such a State, the plaintiff alleges in his declaration the necessary jurisdictional facts, and the defendant does not traverse them by special plea in abatement, they are assumed to be true, although there may have been no evidence upon the subject.1 If in the course of the trial it should affirmatively appear that they are untrue it will be the statutory duty of the Court to dismiss the case, as one not really within its jurisdiction.

In Code States in which the general denial of the answer traverses the jurisdictional facts, the plaintiff must prove them. In most of the States in which the code system of pleading prevails, it is not necessary to plead specially in abatement. A general denial in the answer of all the allegations of the declaration or complaint that are not admitted, puts the burden of proving them upon the plaintiff. In such States it has accordingly been held that unless the defendant by its answer admits the jurisdictional allegations, the plaintiff must prove them, and if he does not, judgment must be given against him."

407. The Conformity Statute and the Local Codes of Maryland. In Maryland we have separate codes for the City of Baltimore and for everyone of the twenty-three counties of the State. In Baltimore City, and in quite a number of the counties, there are local requirements with reference to the pleading and practice of the Courts differing from the provisions of the Code of Public General Laws.

1Sheppard vs. Graves, 14 How. 505; Steigleder vs. McQuesten, 198 U. S. 141.

2 Roberts vs. Lewis, 144 U. S. 653; Lindsay-Bitton Live Stock Co. vs. Justice, 191 Fed. 163. The latter case overrules Hill vs. Walker, 167 Fed. 241, in which the whole subject and all the authorities are elaborately discussed.

The Act of Congress does not provide for the adoption of such local statutes.

408. Speedy Judgment Acts. For example-the Speedy Judgment Act applies to Baltimore City. There are Acts, similar in purpose, but differing more or less in detail, in force in quite a number of the counties of the State. No one of these regulates the practice of the District Court of the United States for the District of Maryland. That practice is necessarily uniform throughout the district. Conformity to the State practice as near as may be, is brought about by a rule of Court adopting the Act effective in Baltimore City, with some modifications, the latter made in view of the fact that it is not quite fair to call on a defendant in Garrett or Worcester to plead in a clerk's office in Baltimore City quite so promptly as can reasonably be demanded of a

resident of Baltimore.

The present rule of the United States Court for the District of Maryland allows the defendant to plead at any time before the next return day instead of limiting him to the fifteen days prescribed by the local law. Return days are the first Mondays of each month.

409. Common Law Trials With Jury Unless Waived. Every common law trial in the Federal Courts is to a jury unless the parties otherwise agree. The agree ment may be in writing or it may be by word of mouth. If it is not in writing, the right to a review of any ruling upon the admission or rejection of testimony or upon any other question growing out of the evidence, has been waived. The judgment of the Court is final. It has been held that the verbal agreement of the parties to submit the case to the Judge without a jury is as an agreement to abide by his arbitration.1

The statute, however, provides that the parties may stipulate in writing to try the case before the Court without a jury. When this is done, exceptions may be taken and writs

'Bond vs. Dustin, 112 U. S. 604.

of error issued in the same manner as if the trial was before a jury.2

410. Qualifications of Jurors.-The qualifications of jurors in the United States Courts are those prescribed by the law of the State in which the Court is sitting. This rule has in some cases been very strictly enforced. Thus-a prisoner was indicted for having, while president of a national bank at Asheville, North Carolina, abstracted and embezzled its funds. His counsel and the district attorney stipulated in writing that the defendant might plead to the indictment, but should have the right on motion in arrest or for a new trial to take advantage of all matters and things available on motion to quash or by demurrer. After he had been four times tried and twice convicted, he attacked the competency of the Grand Jury by which he was indicted on the ground that two members of it were persons who had been assessed for taxes in North Carolina, but who had not paid their taxes for the preceding year, and who therefore were not, according to the State law, qualified to serve as jurors. The Circuit Court of Appeals held that this objection was fatal, reversed the judgment, and sent the case back with an order to quash the indictment. It was then about nine years since the offense had been committed. The Statute of Limitations was a complete bar to any further prosecution.1

411. Competency of Witnesses in Civil Cases Determined by State Law.-By Act of June 29, 1906,1 the competency of a witness to testify in any civil action, suit or proceeding in the Courts of the United States is to be determined by the laws of the State or Territory in which the Court is held. The Act by its terms applies to cases at law, in equity and in admiralty.

2 Revised Statutes, secs. 649, 700.

1 Breese vs. United States, 143 Fed. 250.

134 Stat. 618.

Rowland vs. Biesecker, 185 Fed. 515.

412. Court Determines the Law, the Jury the Facts. -In civil as in criminal cases in the Federal Courts, the Court, that is to say, the judge, is the judge of the law; the jury of the facts. The judge is at liberty to comment upon the latter as fully as he sees fit, always provided he makes the jury understand that they are the final judges of the facts, and that they are at full liberty to disregard anything that he says on that subject, although they are absolutely bound to accept the law as laid down by him.

413. What Happens When Both Parties Ask for Instructed Verdict.-Sometimes at the end of a trial by jury each party asks for an instructed verdict. In the Federal Courts when this is done it amounts to an agreement that there are no disputed questions of fact which could operate to deflect or control the question of law. It is a request that the Court find the facts. The parties are therefore concluded by the finding made by the Court and upon which the resulting instruction of law is given. In reviewing the action of the Court below, the Appellate Court is limited to the consideration of the correctness of the conclusion of law. If that be sound, and there be any evidence to support it, the judgment must be affirmed.1

414. Exceptions to Charge Must Point Out Particular Error Complained of.-If counsel wish to reserve an exception of any value to the charge of the judge, it is necessary to point out to him specifically the very proposition alleged to be erroneous. The rule in this respect is the same in civil as in criminal cases.1

415. Federal Courts Will Direct Verdicts in Cases in Which in Courts of Some States Such Direction Could Not Be Given.-In the Federal Courts when the evidence points so unmistakably to one conclusion that no fair-minded and intelligent man could come to any other,

'Beuttell vs. Magone, 157 U. S. 154.

1 Sec. 108, supra.

the Court will instruct the jury to find a verdict accordingly. Such instruction will be given, although there may be a scintilla of evidence on the other side. The Court will direct a verdict for one party in those cases in which it would feel bound to set aside a verdict for the other. This is contrary to the practice prevailing in some of the States.

Such direction has been given at the conclusion of the plaintiff's opening statement and before any evidence was offered. In the leading case on the subject the plaintiff, who had been consul general of Turkey, sued the Winchester Arms Co. for upwards of $130,000, which he alleged to be due him as a commission on a large sale of rifles to the Turkish Government. From the opening statement of his counsel, it appeared that he had agreed for a commission to use his large personal influence with the Turkish officer detailed to select and buy the arms. The Court at once directed a verdict for the defendant. The Supreme Court said it was right in so doing.2

1

1 Delaware, Lackawanna & Western R. R. Co. vs. Converse, 139 U. S. 469.

* Oscanyan vs. Arms Co., 103 U. S. 261.