Treat, J.,
(orally.) In the case of Jerre Abbott and others against the Curtis & Co. Manufacturing Company (Mr. Stewart on the one side and Mr. Homer on the other) the charge of tho court, as requested, has been written out. It involves a groat many other cases that are arising before the court; one caso in particular, in which Mr. Overall and Mr. Cunningham are concerned. Tho proposition substantially is this: While under the‘act of 1872 the federal courts conformed to the practice, pleadings, etc., of tho various states in which federal courts are administering law, does that statute go to the extent of requiring the federal courts to pursue whatever there may be in the local statutes with regard to instructions to tho jury, and their modes of rendering a verdict? Here was a demand on promissory notes. There was an underlying agreement that if any of the plates which were in consideration of the notes should prove defective, there should be a deduction on that account. It was contended on the part of the defendant that there was a December agreement by which a large mass of these plates should be credited to tho defendant,—they say the sum of $6,000. That was the point of dispute. Testimony was given on the one or tho other side varying very greatly. The jury chose to find, and this court will not review their finding, that there was no such agreement; that under the instrue[406]*406tions of the court, if they found that was so, they should credit the-$6,000; if they found it was not so, they should credit any defective plates that might have been ascertained. They found on the theory, unquestionably, in looking through the testimony, that there was no such agreement by way of settlement, in December, but that there were defective plates which had been sufficiently proved, and they made a full allowance therefor. One of the gentlemen of the jury, under the direction of the court, kept a detailed account of all those-matters. He seemed to be, and I presume was, quite as intelligent as the court itself in analyzing the debit and credit account, and the-jury settled it accordingly.
So far as the amount is concerned, I cannot see that the j ury committed any error. The other point presented is, that inasmuch as-there was a counter-claim the jury should have found specifically— there being a series of notes sued on by the plaintff—with regard to-each, and separated them in its verdict, and separated also the counter-claims to the extent that they might allow the same, and find specifically on each count of the 'petition, and also on each counterclaim. I am very well aware of the rulings of the supreme court of the state of Missouri, and also of state statutes, and I have disregarded them in the light of the decisions of the supreme court of the United States; so the ruling which I shall make on this point, if the question should be presented again, shall be broad enough to cover all this class of cases. It -is very important, that it should be understood what the ultimate decisions of the supreme court of the United States are on these questions. In 91 U. S. 426, (the case of Nudd v. Burrows,) those matters were before that tribunal. I will read what the court said:
“The line which separates the two provinces must not be overlooked by the court. Care must be taken that the jury is not misled into the belief that they are alike bound by the views expressed upon the evidence and the instructions given as to the law. [Iliad occasion during this term to administer a very sharp rebuke to the jury in regard to that. They seemed to think they could take the law and do as they pleased with it.] They must distinctly understand that what is said as to the facts is only advisory, and in no wise intended to fetter the exercise finally of their own independent judgment. Within these limitations, it is the right and duty of the court to aid them by recalling the testimony to thpir recollection, by collating its details, by suggesting grounds of preference where there is contradiction, by directing their attention to the most important facts, by eliminating the true points of inquiry, by resolving the evidence, however complicated, into its simplest elements, and by showing the bearing of its several parts, and their combined effect, stripped of every consideration which might otherwise mislead or confuse them. How this duty shall be performed depends in every case upon the discretion of the judge. There is none more important resting upon those who preside at jury trials. Constituted as juries are, it is frequently impossible for them to discharge their function wisely and well without this aid. In such eases, chance, mistake, of caprice may determine the result.”
In other words, every one familiar with the common law knows that that was the proper proceeding. But the next question, which is the [407]*407moat Important, is under this statute to which reference was made in this particular case, and in some other cases. There was an assignment of errors in the case cited from the United States supreme court, viz.:
“That the court erred in matters oí practice. Before the judge began his charge to the jury the counsel for the defendants requested him, in giving it, to conform in all things to the practice of the courts of record and the huv of the slate. This he refused to do. He also refused to allow the jury to take with them to their room the written instructions he had given them, and likewise the account-book, bills of lading, and additional papers, which had been introduced in evidence, other than the depositions. To each of these refusals the defendants excepted. [ This is a ease from the Northern circuit of Illinois.] The practice act of Illinois provides that the court in charging the jury shall instruct them only as to the law of the case; that no instruction shall be given, unless reduced to writing; that instructions asked shall not be modified by the court, except in writing; that the instructions shall be taken by the jury in their retirement, and returned with the verdict; and that papers read in evidence, other than depositions, may bo carried from the bar by the jury. It is declared by the act of congress of June 1, 1872, ‘that the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform as near as may be ’ to the same things ‘ existing at the time in the courts of record of the state within which such circuit and district courts are held.’”
That was the point distinctly presented to the supreme court of the United States. The court says:
“The purpose of the provision is apparent upon its face. No analysis is necessary to reach it. It was to bring about uniformity in the law of procedure in the federal and slate courts of the same locality. It had its origin in the code enactments of many of the states. While in the federal tribunals the common-law pleadings, forms, and practice were adhered to in the state courts of the same district the simpler forms of the local code prevailed. This involved the necessity on the part of the bar of studying two distinct systems of remedial law, and of practicing according to the wholly dissimilar requirements of both. The inconvenience of such a state of things is obvious. The evil was a serious one. It was the aim of the provision in question to remove it. This was done by bringing about the conformity in the courts of the United States which it prescribes. The remedy was complete.
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Treat, J.,
(orally.) In the case of Jerre Abbott and others against the Curtis & Co. Manufacturing Company (Mr. Stewart on the one side and Mr. Homer on the other) the charge of tho court, as requested, has been written out. It involves a groat many other cases that are arising before the court; one caso in particular, in which Mr. Overall and Mr. Cunningham are concerned. Tho proposition substantially is this: While under the‘act of 1872 the federal courts conformed to the practice, pleadings, etc., of tho various states in which federal courts are administering law, does that statute go to the extent of requiring the federal courts to pursue whatever there may be in the local statutes with regard to instructions to tho jury, and their modes of rendering a verdict? Here was a demand on promissory notes. There was an underlying agreement that if any of the plates which were in consideration of the notes should prove defective, there should be a deduction on that account. It was contended on the part of the defendant that there was a December agreement by which a large mass of these plates should be credited to tho defendant,—they say the sum of $6,000. That was the point of dispute. Testimony was given on the one or tho other side varying very greatly. The jury chose to find, and this court will not review their finding, that there was no such agreement; that under the instrue[406]*406tions of the court, if they found that was so, they should credit the-$6,000; if they found it was not so, they should credit any defective plates that might have been ascertained. They found on the theory, unquestionably, in looking through the testimony, that there was no such agreement by way of settlement, in December, but that there were defective plates which had been sufficiently proved, and they made a full allowance therefor. One of the gentlemen of the jury, under the direction of the court, kept a detailed account of all those-matters. He seemed to be, and I presume was, quite as intelligent as the court itself in analyzing the debit and credit account, and the-jury settled it accordingly.
So far as the amount is concerned, I cannot see that the j ury committed any error. The other point presented is, that inasmuch as-there was a counter-claim the jury should have found specifically— there being a series of notes sued on by the plaintff—with regard to-each, and separated them in its verdict, and separated also the counter-claims to the extent that they might allow the same, and find specifically on each count of the 'petition, and also on each counterclaim. I am very well aware of the rulings of the supreme court of the state of Missouri, and also of state statutes, and I have disregarded them in the light of the decisions of the supreme court of the United States; so the ruling which I shall make on this point, if the question should be presented again, shall be broad enough to cover all this class of cases. It -is very important, that it should be understood what the ultimate decisions of the supreme court of the United States are on these questions. In 91 U. S. 426, (the case of Nudd v. Burrows,) those matters were before that tribunal. I will read what the court said:
“The line which separates the two provinces must not be overlooked by the court. Care must be taken that the jury is not misled into the belief that they are alike bound by the views expressed upon the evidence and the instructions given as to the law. [Iliad occasion during this term to administer a very sharp rebuke to the jury in regard to that. They seemed to think they could take the law and do as they pleased with it.] They must distinctly understand that what is said as to the facts is only advisory, and in no wise intended to fetter the exercise finally of their own independent judgment. Within these limitations, it is the right and duty of the court to aid them by recalling the testimony to thpir recollection, by collating its details, by suggesting grounds of preference where there is contradiction, by directing their attention to the most important facts, by eliminating the true points of inquiry, by resolving the evidence, however complicated, into its simplest elements, and by showing the bearing of its several parts, and their combined effect, stripped of every consideration which might otherwise mislead or confuse them. How this duty shall be performed depends in every case upon the discretion of the judge. There is none more important resting upon those who preside at jury trials. Constituted as juries are, it is frequently impossible for them to discharge their function wisely and well without this aid. In such eases, chance, mistake, of caprice may determine the result.”
In other words, every one familiar with the common law knows that that was the proper proceeding. But the next question, which is the [407]*407moat Important, is under this statute to which reference was made in this particular case, and in some other cases. There was an assignment of errors in the case cited from the United States supreme court, viz.:
“That the court erred in matters oí practice. Before the judge began his charge to the jury the counsel for the defendants requested him, in giving it, to conform in all things to the practice of the courts of record and the huv of the slate. This he refused to do. He also refused to allow the jury to take with them to their room the written instructions he had given them, and likewise the account-book, bills of lading, and additional papers, which had been introduced in evidence, other than the depositions. To each of these refusals the defendants excepted. [ This is a ease from the Northern circuit of Illinois.] The practice act of Illinois provides that the court in charging the jury shall instruct them only as to the law of the case; that no instruction shall be given, unless reduced to writing; that instructions asked shall not be modified by the court, except in writing; that the instructions shall be taken by the jury in their retirement, and returned with the verdict; and that papers read in evidence, other than depositions, may bo carried from the bar by the jury. It is declared by the act of congress of June 1, 1872, ‘that the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform as near as may be ’ to the same things ‘ existing at the time in the courts of record of the state within which such circuit and district courts are held.’”
That was the point distinctly presented to the supreme court of the United States. The court says:
“The purpose of the provision is apparent upon its face. No analysis is necessary to reach it. It was to bring about uniformity in the law of procedure in the federal and slate courts of the same locality. It had its origin in the code enactments of many of the states. While in the federal tribunals the common-law pleadings, forms, and practice were adhered to in the state courts of the same district the simpler forms of the local code prevailed. This involved the necessity on the part of the bar of studying two distinct systems of remedial law, and of practicing according to the wholly dissimilar requirements of both. The inconvenience of such a state of things is obvious. The evil was a serious one. It was the aim of the provision in question to remove it. This was done by bringing about the conformity in the courts of the United States which it prescribes. The remedy was complete. The personal administration by the judge of his duties while sitting upon the bench was not complained of. No one objected or sought, a, remedy in that direction. We see nothing in the act to warrant the conclusion that it was intended to have such an application. [That is, that the proceedings of the judge charging the j ury shall be controlled by the local statute.] If the proposition of the counsel for the plaintiff in error be correct, the powers of the judge, as defined by the common law, were largely trenched upon. A statute, claimed to work this effect must bo strictly construed. But no severity of construction is necessary to harmonize the language employed with the view’ we have expressed. The identity required is to be ill ‘the practice, pleadings, and forms and modes of proceeding.’ The personal conduct and administration of the judge in the discharge of his separate functions, in our judgment, are neither practice, pleading, nor a form nor mode of proceeding within the meaning of those terms as found in the context. The subject of these exceptions is therefore not within the act as we understand it. There are certain powers inherent in the judicial office. How far the legislative [408]*408department of the government can impair them to dictate the manner of their exercise are interesting questions; but it is unnecessary to consider them.”
Now as to the particular case in hand. Here were counter-claims and different counts, and the controversy was as to where the balance belonged. The court charged, and it has been reduced to writing, substantially, that the rights of all the parties were to be ascertained by the jury, as they kept the details, by striking a balance. If there were any of those counter-claims which ought to be allowed, the court instructed the jury in regard to them to allow them and strike the balance. The contention now is that there was error; that the jury ought to have found on each count in the petition, and separately on each count in the counter-claim. In the light of what I have read with regard to it, I consider that it was wholly unnecessary for the jury to go through a long examination of accounts between the parties, and separate'them in their verdict, but that they could allow, as they did, evidently in this case, some thousand dollars of the counterclaim, and strike a balance. The matter substantially involved in the motion for a new trial is that they ought to have found separately with regard to each issue out of the many issues presented. The supreme court has held otherwise, and I am fully in accord with it; and the motion for a new trial will be overruled.