lated damages, it could be done in any case, although the damages might be either Chicago nominal or easily assessable." House-Wrecking Co. r. U. S., (C. C. A. 7th Cir. 1901) 106. Fed. 385, 45 C. C. A. But see U. S. v. 343, 53 L. R. A. 122. Alcorn, (W. D. Mo. 1906) 145 Fed. 995. In another case where a bond was given for the care of a feeble-minded alien and it was claimed that the recovery thereon should be for the full amount of the obligation, the court said, after referring to R. S. sec. 961: The rule is that, where the parties to a contract have agreed that a sum shall become payable on a single event, such sum may be regarded as liquidated damages, but where the sum is made payable to secure the performance of several stipulations of varying degrees of importance, it is clear the stipulated sum must be regarded as a penalty, and not as liquidated damages for a part default. Had the breach averred been in the performance of the only condition to be performed, the argument addressed to us would have force." U. S. v. Rubin, (E. D. Pa. 1915) 227 Fed. 938.

A written stipulation is not essential to a waiver of a jury to assess damages on a

bond after default under this section. Brock r. Fuller Lumber Co., (C. C. A. 1st Cir. 1907) 153 Fed. 272, 82 C. C. A. 402, wherein it appears that plaintiff sued on a contractor's bond to secure performance of a written contract. On the trial, defendants' attorney stated that defendants might be defaulted, but that he "would like to be heard on the question of damages," and immediately thereafter suggested that the case be sent to an auditor. This was agreed to, and, though a jury was then present, an auditor was appointed, and no request was made for a jury trial at any time during the term, nor until four months after default, and after defendants had learned that the auditor's report was unfavorable, when they applied for an assessment of damages by a jury, as authorized by this section, and it was held that the finding of the Circuit Court that the request for a jury trial was too late should not be disturbed.

Liability of surety. It is not intended by this section to enlarge the liability of a surety on official bonds. U. S. v. Hills, (1878) 4 Cliff. 618, 26 Fed. Cas. No. 15,369.

no change in the law prescribing what should be included in the transcript sent up on appeal. The Adriatic, (1880) 103 U. S. 730, 26 U. S. (L. ed.) 605.

Not prohibitive of sending up other papers on appeal. The record here mentioned is the technical record on appeal. This section does not prohibit other papers or documents being sent up to the appellate court. Southern Bldg., etc., Ass'n Carey, (W. D. Tenn. 1902) 117 Fed. 325.

บ.

What included in transcript.- Prior to the abolishment of the Circuit Court, it was said as to a transcript sent from the District to the Circuit Court, in an admiralty appeal: "The transcript' sent up from the District Court, when filed in the Circuit Court, becomes and is a part of the proceedings in the Circuit Court; and as it contains the 'libel,' the 'process,' and the 'pleadings' in the cause, without which the final record in the Circuit Court would not show the jurisdiction of the court, and the regularity of the proceedings,' it would seem such pleadings and process must be recorded, by the express provisions of sec

R. S. sec. 649 (see infra, p. 130), which provided for the waiving of a jury, applied only to the Circuit Court. U. S. v. Cleage, (C. C. A. 8th Cir. 1908) 161 Fed. 85, 88 C. C. A. 249; U. S. v. St. Louis, etc., R. Co., (C. C. A. 8th Cir. 1909) 169 Fed. 73, 94 C. C. A. 441; Low t. U. S., (C. C. A. 6th Cir. 1909) 169 Fed. 86, 94 C. C. A. 1; Frank v. U. S., (C. C. A. 6th Cir. 1911) 192 Fed. 864, 113 C. C. A. 188.

A trial in the District Court without a jury, if the case was not one of the excepted ones in this section, was in the nature of a submission to an arbitrator, a mode of trial not contemplated by law, and the court's determination of the issues of fact and of questions of law supposed to arise upon its special finding was not a judicial determination and therefore was not subject to re-examination in an appellate court. Campbell v. U. S., (1912) 224 U. S. 99, 32 S. Ct. 398, 56 U. S. (L. ed.) 684; U. S. v. Louisville, etc., R. Co., (C. C. A. 6th Cir. 1909) 167 Fed. 306, 93 C. C. A. 58; U. S. v. St. Louis, etc., R. Co., (C. C. A. 8th Cir. 1909) 169 Fed. 73, 94 C. C. A. 441; Low v. U. S., (C. C. A. 6th Cir. 1909) 169 Fed. 86, 94 C. C. A. 1; Bond v. Dustin, (1884) 112 U. S. 604, 5 S. Ct. 296, 28 U. S. (L. ed.) 835; Kentucky Life, etc., Ins. Co. v. Hamilton, (C. C. A. 6th Cir. 1894) 63 Fed. 93, 99, 22 U. S. App. 548, 11 C. C. A. 42; Rogers v. U. S., (1891) 141 U. S. 548, 12 St. Ct. 91, 35 U. S. (L. ed.) 853; Wear v. Mayor, (E. D. Mo. 1880) 6 Fed. 658; Lyons v. Lyons Nat. Bank, (N. D. N. Y. 1881) 8 Fed. 369; Doty v. Jewett, (N. D. N. Y. 1884) 19 Fed. 337; Blair . Allen, (1874) 3 Dill. 101, 3 Fed. Cas. No. 1,483; U. S. v. Fifteen Hogshead Brandy, (1862) 5 Blatchf. 106, 15 Fed. Cas. No. 15,090.

Present rule stated. At the present time a trial of issues of fact without a jury may be had in the District Court. The rule formerly obtaining that there was no statute in existence which provided for the trial in the District Court by the court without a jury, and that the provision for waiving a jury, in R. S. sec. 649, applies only to the Circuit Court, no longer obtains. This section is now construed in connection with section 291 of the Judicial Code. Eastern Oil Co. v. Holcomb, (C. C. A. 8th Cir. 1914) 212 Fed. 126, 128 C. C. A. 642, wherein the court said: "It is true that prior to January 1, 1912, there had been no provision made by law for the trial of issues of fact in the District Court, by the court, without the intervention of a jury. Therefore it has been uniformly decided that if the parties to a civil action in the District Court, by agreement, submitted the questions of fact in dispute to a judge for decision upon the evidence, he did not exercise judicial authority in deciding, but acted rather in the character of an arbitrator, and no review of his decision could be had. . . It is claimed that this is still the law in the District Courts, for the

reason that section 649, which 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, does not apply. We think counsel are in error in this contention. Section 291 of the Judicial Code reads as follows: 'Wherever, in any law not embraced within this act, any reference is made to or any power or duty is conferred or imposed upon, the Circuit Courts, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and impose such duty upon, the District Courts.' This section clearly confers upon the District Courts the power to try issues of fact by the court as provided in section 649. It is claimed, however, that if this be so section 649 and section 566 (4 Fed. Stat. Annot. 236), which has not been repealed, are repugnant to each other. This is not so. Section 648 Rev. Stat. U. S. (4 Fed. Stat. Annot. 389) provided for trial by jury in the Circuit Courts in practically the same language as 566 did in the District Courts, but section 649 has never been considered as repugnant to section 648. Section 566 or 648, when read in conection with section 649, must be construed as declaring that the trial of issues of fact in the District Court shall be by jury, except where the parties shall stipulate in writing to waive a jury. Section 649 provides that where a jury is waived, as was done in this case, the finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury." See to the same effect Wm. Edwards Co. v. La Dow, (C. C. A. 6th Cir. 1916) 230 Fed. 378, 144 C. C. A. 520.

Originally the District Courts were without authority to decide a question of fact without a jury, but the adoption of the Judicial Code which abolished the Circuit Courts, in effect merged with the District Courts all the machinery for disposing of business which the Circuit Courts possessed, so that the former rule that a trial in the District Court without a jury was not judicial in its nature but merely an arbitration, no longer applies. Nashville Interurban Ry. v. Barnum, (C. C. A. 2d Cir. 1914) 212 Fed. 634, 129 C. C. A. 170, wherein the court in construing this section with section 291 of the Judicial Code (quoted supra, this note) said: "Although in form the Judicial Code abolished the Circuit Courts and turned their business over to the District Courts, it seems to us that what Congress intended was a merger of the Circuit Courts into the District Courts, and that in transferring to the District Courts the business of the Circuit Courts, there was given to the District, Courts, under the section of the Judicial Code above quoted, all the machinery for disposing of its business which the Circuit Courts possessed. We are

unable to understand that section in any other way. It is also illuminative of this intent that Congress did not repeal the particular section which provided for trial by the Circuit Courts under written stipulation. If the intention had been that thereafter all cases tried in the District Courts, whether original or transferred, should be tried only under the old District Court system, the section became obsolete and was without any reason for its retention. We are therefore forced to the conclusion that the present case must be treated by us precisely as it would have been treated had the trial taken place in the old Circuit Court under the practice which Congress had once approved for that court and which it has never disapproved. We must therefore accord to findings of fact, in a case tried to the court without a jury, there being a stipulation in writing waiving the jury, the same effect as we would give to a verdict, as said by Mr. Justice Miller in Bassett v. U. S., (1869) [9 Wall. 38, 19 U. S. (L. ed.) 548]."

It must be borne in mind as regards trial without a jury that the Constitution of the United States provides that crimes as distinguished from petty offenses can only be tried by a jury. Frank v. U. S., (C. C. A. 6th Cir. 1911) 192 Fed. 864, 113 C. C. A. 188.

III. ADMIRALTY

In general. It was said by Brown, D. J., in The Empire, (E. D. Mich. 1884) 19 Fed. 558, referring to the clause in the text giving a right to trial by jury in certain admiralty cases, that "this somewhat unfortunate clause was introduced by the revisers into the statutes from a hasty dictum of Mr. Justice Nelson, in the case of The Eagle, (1868) 8 Wall. 15, 19 U. S. (L. ed.) 365, . . . but whatever be the origin of the clause in question, there is no doubt that it is the law of the land and must be respected as such. There has been great difficulty, however, in determining in what cases and in what manner it is to be given effect. It creates what appears to be a very unjust discrimination in favor of the particular classes of vessels and causes of action enumerated in the act. Why it should be given in actions of contract and tort, and denied in those of salvage, general average, and prize, and why it should be limited to American vessels plying between domestic ports and denied to all foreign vessels, and to American vessels engaged in foreign trade, it is impossible to conceive.” To the same effect see Gillet v. Pierce, (1875) Brown Adm. 553, 10 Fed. Cas. No. 5,437.

Unless given by statute, there is no right in admiralty to a trial by jury; and the party demanding a jury must bring himself by his pleadings within the provisions of the Act. Gillet v. Pierce, (1875) Brown Adm. 553, 10 Fed. Cas. No. 5,437.

seas.

The first provision in respect to trial by jury in admiralty cases is found in the Act of Feb. 26, 1845, part of which was retained in R. S. sec. 566. This act originally purported to give the District Courts jurisdiction "in matters of contract and tort, arising in, upon or concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed in the coasting trade and employed in the business of commerce and navigation. between ports and places in divers states and territories, upon the lakes and navigable waters connecting the same, as is now possessed by the said courts in cases of like steamboats and other vessels employed in navigation and commerce upon the high At the time this statute was adopted the admiralty jurisdiction was held to extend only to tide waters, so that it could not have been sustained if the admiralty jurisdiction had not been enlarged to apply to all waters navigable in fact, since the constitutional grant of admiralty could not have been extended by Congress. The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 U. S. (L. ed.) 1058; The Eagle, 8 Wall. 15, 19 U. S. (L. ed.) 365. By the latter case the portion of the Act of 1845 above quoted was held to have become inoperative as a grant of jurisdiction, because that jurisdiction was granted by the Constitution, and because the constitutional grant would otherwise be narrowed by that statute; but that the portion of the statute providing for a jury trial on request of either party was still in force. This part of the statute was preserved in R. S. sec.

566.

Territory affected.— The provisions for a jury trial “in causes of admiralty and maritime jurisdiction" apply only to the Great Lakes and water connected therewith, and then only to such issues of fact as arise in cases of contract or tort, the statute having no reference to foreign vessels or those trading between ports of the same state. The Western States, (C. C. A. 2d Cir. 1908) 159 Fed. 354, 86 C. C. A. 354, certiorari denied 210 U. S. 433, 28 S. Ct. 762, 52 U. S. (L. ed.) 1136.

The provisions of this section giving to either party the right to a jury trial in admiralty cases do not include the case of a libel against a vessel plying between ports within the judicial district and not engaged in commerce and navigation between places in different states. The City of Toledo, (N. D. Ohio 1896) 73 Fed. 220.

Nor are they applicable in a case of a vessel employed in navigating the rivers Monongahela and Ohio, particularly where employed in navigating between places in the same state. Bigley v. The Venture, (W. D. Pa. 1884) 21 Fed. 880.

In a case of contract or tort involving two vessels where either vessel is within the description of the statute, either party is entitled to demand a trial by jury. This