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senior in commission in districts having more than one judge, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations until the whole number required shall be placed therein." 6

"Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service." 7

"When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in the preceding section." 8

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"When special juries are ordered in any district court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several States. The cases construing these statutes are considered in the subsequent Chapter upon Criminal practice.10

A State law regulating challenges of jurors as to the favor or to the array pertains to their qualifications and exemptions and is followed by the Federal court which is there held.11 The right to peremptory challenges is not affected by the State laws nor by the statutes previously quoted.12

6 Jud. Code, § 276, ch. 27, 36 St. at L. 1164, Comp. St., § 1253.

7 Ibid, § 277, 36 St. at L. 1164, Comp. St., § 1254.

8 Ibid, § 280, 36 St. at L. 1165, Comp. St., § 1257.

9 Ibid, § 281. 36 St. at L. 1165, Comp. St., § 1258.

10 Infra, § 508, 509.

11 U. S. v. Douglass, 2 Blatchf. 207, Fed. Cas. No. 14,989; U. S. v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16,134; U. S. v. Tallman, 10 Blatchf. 21 Fed. Cas. No. 16,429; U. S. v. Tuska, 14 Blatchf. 5, Fed. Cas. No. 16,550.

12 Detroit M. & T. S. L. Ry. v. Kimball, C. C. A., 211 Fed. 633.

"In civil suits each party shall be entitled to three peremptory challenges, and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section." 13 The rule where cases have been consolidated is previously explained.14 A party who has not exhausted the number of peremptory challenges to which he is entitled, cannot complain because his adversary was allowed more than the statutory number.15 He cannot complain that he was denied the right to the full number allowed him by the statute unless he has made the number so authorized and requested the court to permit him more.16 He cannot object that a challenge for cause was improperly over-ruled when he went to trial before he had peremptorily challenged three jurors.17

The discharge of a juror because of a challenge which was subsequently over-ruled does not prevent his re-call.18

"All challenges whether to the array or panel, or to individual jurors for cause of favor, shall be tried by the court without the aid of triers." 19

The decision of the trial judge upon such a hearing will rarely be reviewed.20

In an action against a manufacturing corporation to recover for the death of an employe, it is not error for the court in the exercise of its discretion to permit plaintiff's counsel, in the examination of jurors on their voir dire, to ask each separately whether he had ever been in the insurance business, and whether he had ever been agent for a particular liability insurance company 21

Where juror on his examination states that he would act on his own judgment of the value of real property, but in reply to

13 Jud. Code, § 287, 36 St. at L. 1166, Comp. St., § 1264, 526 Brewer v. Jacobs, 22 Fed. 217; Ex parte Farley, 40 Fed. 66; Walker v. Collins, 50 Fed. 737; supra, § 526.

14 See $ 472 supra.

15 Connecticut Mut. Life Ins. Co. v. Hillmon, 188 U. S. 208, 47 L. ed. 446.

16 United Mine Workers v. Coronado Coal Co., 258 Fed. 829.

17 Papernow v. Standard Oil Co. of N. Y., 228 Fed. 399.

18 Detroit M. & T. S. L. Ry. v. Kimball, C. C. A., 211 Fed. 633.

19 Jud. Code, § 287, 36 St. at L. 1166, Comp. St., § 1264.

20 Pearson v. Rocky Mountain Fuel Co., 219 Fed. 496.

21 New Aetna Portland Cement Co. v. Hatt, C. C. A., 231 Fed. 612.

the court says he would take the evidence of the witnesses as to the facts, the overruling of a challenge for cause is no error.22 § 473c. Effect of State statutes on procedure at a jury trial. No State statute 1 or constitutional 2 provision regulating the manner of the trial, or applications for postponements or continuances, or form of a verdict, for example, a direction that exemplary damages must be separately assessed, or that special questions be submitted to the jury; 7-or to the custody of the jury; or providing for the trial of a class of cases before a judge without a jury, or for compulsory references in a special class of cases, such as an action on an account; or limiting the powers of the judge to comment on the facts in his charge to the jury, or directing that such charge be in writing; 12 or providing that papers read in evidence may be taken into the jury-room,18 or forbidding the separation of a jury between the

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22 Baddeps Clothing Co. v. Burnham-Munger-Root Dry Goods Co., C. C. A., 228 Fed. 470.

§ 473c. 1 Nudd v. Burrows, 91 U. S. 426, 23 L. ed. 286; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. ed. 898.

2 St. Louis, I. M. & S. Ry. Co. v. Vickers, 122 U. S. 360, 30 L. ed. 1161.

3 Nudd v. Burrows, 91 U. S. 426, 23 L. ed. 286; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. ed. 898; Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 30 L. ed. 257; St. Louis, I. M. & S. Ry. Co. v. Vickers, 122 U. S. 360, 30 L. ed. 1161.

4 Texas & R. Ry. Co. v. Nelson, 50 Fed. 814, supra, § 473a.

5 Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 30 L. ed. 1161; Abbott v. Curtis & Co. Mfg. Co., 25 Fed. 402; U. S. Mut. Acc. Ass'n v. Barry, 131 U. S. 100, 33 L. ed. 60; McElwee v. Metropolitan Lumber Co., C. C. A., 69 Fed. 302, 319, 16 C. C. A. 232. See supra, $ 473k.

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6 Times Pub. Co. v. Carlisle, C. C. A., 94 Fed. 762.

7 Toledo, St. L. & W. R. Co. v. Reardon, C. C. A., 159 Fed. 366, holding that a judge may refuse to submit special interrogatories to the jury because they were not filed until the summing up.

8 Liverpool & L. & G. Ins. Co. v. N. & M. Friedman Co., C. C. A., 133 Fed. 713.

9 Klever v. Seawell, 65 Fed. 393.

10 Howe Mach. Co. v. Edwards, 15 Blatchf. 402; U. S. v. Rathbone, 2 Paine, 578; Sulzer v. Watson, 39 Fed. 414.

11 Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 30 L. ed. 257; St. Louis, I. M. & S. Ry. Co. v. Vickers, 122 U. S. 360, 30 L. ed. 1161; U. S. v. Phila. & R. R. Co., 123 U. S. 113, 31 L. ed. 138; Rucker v. Wheeler, 127 U. S. 85, 93, 32 L. ed. 102, 105; Lovejoy v. U. S., 128 U. S. 171, 32 L. ed. 389.

12 Nudd v. Burrows, 91 U. S. 426, 23 L. ed. 286.

13 Nudd v. Burrows, 91 U. S. 426, 23 L. ed. 286.

charge and the verdict: 14 has any influence upon the practice in the Federal courts. These matters except the requirements as to when a case must be tried before a judge 15 16 or referee are in the discretion of the court.17

But it has been said that the sufficiency and scope of pleadings, and the form and effect of verdicts, in actions at law, are matters in which the courts of the United States are governed by the practice of the courts of the State in which they are held.18

The Federal court will follow a State statute authorizing a voluntary nonsuit.19 A State statute authorizing a motion for judgment non obstante veredicto has been followed.20 The State practice in the withdrawal of jurors may in a proper case be followed.21

§ 473d. Introduction of evidence before jury. The general principles which control the admission of evidence in the Federal courts have been previously considered. The power of the courts of the United States to make rules regulating the taking of testimony in actions at common law, has been denied." It is the general rule of the Federal courts, that the crossexamination of a witness shall be limited to the subjects of his direct examination. But this does not limit the cross-examina

14 Liverpool & L. & G. Ins. Co. v. N. & M. Friedman Co., C. C. A., 133 Fed. 713, 716, 66 C. C. A. 543. 15 Infra, § 474.

16 Infra, § 475.

17 Liverpool & L. & T. Ins. Co. v. N. & M. Friedman Co., C. C. A., 133 Fed. 713, 716, 66 C. C. A., 543; Guardian Fire Ins. Co. v. Central Glass Co., C. C. A., 194 Fed. 851.

18 Gray, J., in Glenn v. Sumner, 132 U. S. 152, 156, 33 L. ed. 301. See Bond v. Dustin, 112 U. S. 604, 28 L. ed. 835; and § 360.

19 Aetna Life Ins. Co. v. Lakin, C. C. A., 59 Fed. 982; Chicago M. & St. P. Ry. Co. v. Metal Staff, C. C. A., 101 Fed. 769; Francisco Chicago & A. R. Co., C. C. A., 149 Fed. 354; Meyer v. National Biscuit Co.,

C. C. A., 168 Fed. 906. Infra, § 473g.

20 Silsby v. Foote, 14 How. 218, 220, 14 L. ed. 394, 395.

21 Goehrig v. Stryker, 174 Fed. 897; Smith v. Jones, 181 Fed. 819. But see Slocum v. N. Y. Life Ins. Co., 228 U. S. 364.

§ 473d. 1 Chapter XXI.

2 Randall v. Venable, 17 Fed. 163; Flint v. Board of Com'rs, 5 Dill. 481; McLennon v. Kansas City, St. J. & C. B. R. Co., 22 Fed. 198. Contra, Warren v. Younger, 18 Fed. 859.

3 Resurrection Gold Min. Co. v. Fortune Gold Min. Co., 129 Fed. 668. The trial court may, in its discretion, allow a more extended examination. California Fruit Can

tion to the specific details inquired of upon the direction. It permits full inquiry into the subject matter as to which inquiry has been made,5 the scope being largely within the discretion of the trial judge.6 Where a witness for the plaintiff has disclosed, upon his direct examination, part of a conversation or transaction, the fact that the entire conversation or transaction constitutes an affirmative defense is no bar to its disclosure upon cross-examination." Where a witness testified to a partnership and to various transactions and conversations with the defendant in relation thereto it was competent on cross-examination to interrogate him as to other transactions and conversations with third parties tending to disprove the existence of a partnership.8 The extent of a redirect examination and the recall of witnesses are largely in the discretion of the trial judge.10

The test of a "leading question" is whether it suggests or indicates the particular answer desired, and it does not necessarily make a question leading that it may be answered "Yes" or "No." 11

The trial judge may allow a witness to give testimony in a narrative form; and if such a witness states irrelevant or incompetent matter it is the duty of the injured party to arrest the narrative and move to have the irrelevant matter stricken out.12 Objections to the admission of evidence, which state no ground for its exclusion, cannot support valid exceptions, unless

ners' Ass'n v. Lilly, C. C. A., 184 Fed. 570. The trial judge should not interfere in the cross-examination of a witness by question or comment on his testimony. KlauderWeldon Dyeing Mach. Co. v. Gagnon, C. C. A., 183 Fed. 962, 965; but, except in an extraordinary case, a judgment will not be reversed for that reason, Ibid.

4 Commercial State Bank v. Moore, C. C. A., 227 Fed. 19.

5 Ibid.

6 California Fruit Canners' Ass'n v. Lilly, C. C. A., 184 Fed. 370; Nashville Interurban Ry. v. Barnum, C. C. A., 212 Fed. 634. For a case where it was held not improper to

refuse to strike out from a deposition an answer which was not responsive to a question on cross-examination, see Partridge v. Boston & M. R. Co., C. C. A., 184 Fed. 211.

7 Resurrection Gold Min. Co. v. Fortune G. Min. Co., C. C. A., 129 Fed. 668.

8 Commercial State Bank v. Moore, C. C. A., 227 Fed. 19.

9 Dinet v. Rapid City, C. C. A., 222 Fed. 497.

10 Hauck v. Frey, 228 Fed. 779. 11 De Witt v. Skinner, C. C. A., 232 Fed. 443.

12 N. Pac. R. Co. v. Charles, C. C. A., 51 Fed. 562, 571.

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