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when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."1

General complaint was made against this section as not suffi ciently broad to protect the people's rights. Accordingly the Seventh Amendment was adopted. This ordains: "In Suits at Common Law, where the Value in controversy shall exceed Twenty Dollars, the Right of Trial by Jury shall be preserved; and no Fact tried by a Jury shall be otherwise re-examined in any Court of the United States than according to the Rules of the Common Law."

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This Amendment does not apply to Territorial courts nor to the State courts even when these are trying causes of action created by a Federal statute.*

The Revised Statutes provide that the trial of issues of fact in actions at common law in the Circuit and District Courts shall be by jury. It has been said that this section has no application to the District Courts as now organized.

The Revised Statutes expressly authorize the parties to waive. a jury by stipulation in writing signed by them or their attorneys of record and filed with the clerk. An oral waiver in open court binds the parties.8 The parties are presumed to have waived a jury even in the absence of a formal stipulation, whenever it appears that they were present at the trial in person or by counsel and made no demand for the jury.9 When a motion to dismiss because the citizenship of the parties is not as alleged by plaintiff is determined by the court without a demand for a jury, the plaintiff waives his right to

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8 Dundee Mortgage & Trust Inc. Co. v. Hughes, 124 U. S. 157, 160, 8 Sup. Ct. 377, 31 L. ed. 357.

9 Kearney v. Case, 12 Wall 275, 283, 20 L. ed. 395p Gilman v. Ill. & Miss. Tel. Co., 91 U. S. 603, 614, 23 L. ed. 405; U. S. v. Harris, 106 U. S. 629, 635, 1 Sup. Ct. 601, 27 L. ed. 900; Perego v. Dodge, 163 U. S. 160, 166, 16 Sup. Ct. 971, 41 L. ed. 113.

insist upon a formal plea of abatement and a trial by jury of the issues this raised.10

Upon a motion to enter satisfaction of a judgment by reason of its payment or discharge, made as a substitute for a writ of audita querela, the trial of the issues arising under such motion should be tried by a jury.11

Where the defendant defaults, there is no trial of any issue, and if the State practice permits, the court may itself, in cases not specified in the Revised Statutes of the United States, assess the damages, 12 or it may refer their assessment to an auditor.13 It has been held that, when the plaintiff fails to appear upon the trial, the proper practice is to impanel a jury and direct a verdict for the defendant.14

§ 473a. Continuances and adjournments. The Revised Statutes provide: "In all suits brought to recover the forfeiture annexed to any article of agreement, covenant, bond, or other specialty, where the forfeiture, breach, or non-performance appears by the default or confession of the defendant, or upon demurrer, the court shall render judgment for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, it shall, if either of the parties request it, be assessed by a jury." i

Such a request is too late when made after a reference to an auditor by mutual consent.2

"When suit is brought by the United States against any revenue officer or other person accountable for public money, who neglects or refuses to pay into the Treasury the sum or balance reported to be due to the United States, upon the adjustment of his account it shall be the duty of the court to grant judgment at the return term, upon motion, unless the

10 Parkerson v. Borst, C. C. A., 251 Fed. 242.

11 Lillie v. Dennert, C. C. A., 232 Fed. 104.

12 Midland Contracting Co. v. Toledo Foundry & Machine Co., C. C. A., 154 Fed. 797.

13 Brock v. Fuller Lumber Co., C. C. A., 153 Fed. 272.

14 Patting v. Spring & C. Co., 93 Fed. 98; Schultz v. Mut. L. Ins. Co., U. S. C. C., S. D. N. Y., 1881, per Shipman, J. in which the author was counsel.

§ 473a. 1U. S. R. S., § 961.

2 Brock v. Fuller Lumber Co., C. C. A., 153 Fed. 272.

defendant, in open court (the United States attorney being present), makes and subscribes an oath that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the accounting officers of the Treasury, and rejected; specifying in the affidavit each particular claim so rejected, and that he cannot then safely come to trial. If the court, when such oath is made, subscribed and filed, is thereupon satisfied, a continuance until the next succeeding term may be granted. Such continuance may also be granted when the suit is brought upon a bond or other sealed instrument, and the defendant pleads non est factum, or makes a motion to the court, verifying such plea or motion by his oath, and the court thereupon requires the production of the original bond, contract, or other paper certified in the affidavit. And no continuance shall be granted except as herein provided.'' 8

"In suits arising under the postal laws the court shall proceed to trial, and render judgment at the return term; but whenever service of process is not made at least twenty days before the return day of such term, the defendant is entitled to one continuance, if, on his statement, the court deems it expedient; and if he makes affidavit that he has a claim against the Post-Office Department, which has been submitted to and disallowed by the Sixth Auditor, specifying such claim in his affidavit, and that he could not be prepared for trial at such term for want of evidence, the court, if satisfied thereof, may grant a continuance until the next term." 4

"In all suits for the recovery of money upon debentures issued by the collector of customs, under any act for the collection of duties, it shall be the duty of the court to grant judgment at the return term, unless the defendant, in open court, exhibits some plea, on oath, by which the court is satisfied that a continuance is necessary to the attainment of justice, in which case, and not otherwise, a continuance until the next term may be granted.

"When suit is brought on any bond for the recovery of duties due to the United States, it shall be the duty of the court

U. S. R. S., § 957. 4 U. S. R. S., § 958.

5 U. S. R. S., § 959.

to grant judgment at the return term, upon motion, unless the defendant, in open court (the United States attorney being present), makes oath that an error has been committed in the liquidation of the duties demanded upon such bond, specifying the errors alleged to have been committed, and that the same have been notified in writing to the collector of the district before the said return term; whereupon a continuance may be granted until the next term, and no longer, if the court is satisfied that such continuance is necessary for the attainment of justice." 6

No State statute in regard to adjournments or continuances can affect the practice in the Federal courts."

An application for an adjournment or continuance should regularly be in writing supported by affidavit, but the courts often grant them upon the oral statement of counsel.8

A continuance or adjournment of a trial because of the absence of a witness should not be granted unless the moving party shows that he exercised due diligence in seeking to procure his attendance or testimony and that his attendance can probably be secured at the subsequent term.9

When it is not shown that there is illness on the part of the counsel or the party seeking the postponement of the trial, or an engagement of counsel in a trial or in attendance before an appellate court, or illness of a material witness or that there has been inability to subpoena such a witness; 10 it is the proper practice to impose as a condition that the applicant pay the expenses made and incurred by his opponent in bringing witnesses to the place of trial and the latter's own traveling expenses. The absence of witnesses who can testify to character only is ordinarily no ground for an adjournment.11

When there had been a conviction upon several counts of an indictment, any of which justified the sentence imposed, ex

6 U. S. R. S., § 960.

7 Texas & P. Ry. Co. v. Nelson, 50 Fed. 814.

8 Warren v. U. S., C. C. A., 250 Fed. 89.

9 St. Louis Stave & Lumber Co. v. U. S., C. C. A., 177 Fed. 178;

Armour & Co. v. Kollmeyer, C. C.
A., 161 Fed. 78. -

10 Younge v. U. S., C. C. A., 223 Fed. 941.

11 Warren v. U. S., C. C. Fed. 89.

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ception to the denial of a continuance because of the absence of a witness to a single count was disregarded.12

A continuance or postponement of a trial is ordinarily within the discretion of the judge and his denial will not be reviewed 18 unless such discretion has been grossly abused.14 Should he grant a postponement without any justification, his order might be reviewed by an application for the writ of mandamus.15

§ 473b. Selection of jury. "Jurors to serve in the courts of the United States, in each State respectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same exemptions, as jurors of the highest court of law in such State may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned." This relieves talesmen from any disability imposed by the Fourteenth Amendment.2

"No citizen, possessing all other qualifications which are or may be prescribed by law shall be disqualified for service on account of race, color or previous condition of servitude."3 It has been said that the word "qualifications" refers to the Juror personally and may relate to his age, property, citizenship, or anything else belonging to his personal standing; but does not refer to special reasons which do not exclude the juror from the panel but would exclude him only from acting in the particular case.5

"All such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in the section last preceding, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, or by the judge

12 Young v. U. S., C. C. A., 249 Eed. 935.

13 Isaacs v. U. S., 159 U. S. 487, 489, Warren v. U. S., C. C. A., 250 Fed. 89.

14 Younge v. U. S., C. C. A., 223 Fed. 941.

15 See supra, § 457.

§ 473b. 1 Jud. Code, $275, 36,

Fed. Prac. Vol. III-14

St. at L. 1164, Comp. St. § 1252. 2 Re Carnes, 31 Fed. 397.

3 Jud. Code, § 278, ch. 231,278, 36 St. at L. 1165, Comp. St., § 1258. 4 U. S. v. Collins, 1 Woods, 499,. Fed. cas. No. 14,837.

5 U. S. v. Williams, 1 Dillon, 485, Fed. cas. No. 16,716.

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