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below, assume the existence of facts and ask a charge to the jury based upon such assumption; nor, upon argument here, insist that, because the assumption was made, this court is to consider the assumed facts as existing. N. Y. M. Life Ins. Co. v. Baker, 4 Otto, 610.

51. (Oct., 1877.) The court reaffirms its former decisions, that a court is not bound to give instructions in the language in which they are asked. If those given sufficiently cover the case, and are correct, the judgment will not be disturbed. Railway Co. v. McCarthy, 6 Otto, 258.

FINDING.

52. (Feb., 1826.) To bring all the testimony offered at the trial of a cause at common law, instead of facts, into this court, by a bill of exceptions, or otherwise, is a practice which, to say the least, is extremely inconvenient. Armstrong v. Toler, 11 Wheat. 276.

53. The party cannot, by such a practice, take advantage of any omission in the judge's charge, under a general exception to it. If he wishes the instruction of the court to the jury on any point omitted in the charge, he must suggest it, and request the judge's opinion on it. Ib.

54. (Feb., 1826.) Where, in a special verdict, the essential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, this court will not render a judgment upon such an imperfect special verdict, but will remand the cause to the court below, with directions to award a venire facias de novo. Barnes v. Williams, 11 Wheat. 415.

55. (Jan., 1850.) Where, in a special verdict, the essential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, this court will not render a judgment, but remand the cause to the court below for a venire facias de novo. Prentice v. Zane, 8 How. 470.

56. Therefore, where a suit was brought by an indorsee upon a promissory note, and the special verdict found that the original consideration of the note was fraudulent on the part of the payee, but omitted to find whether the holder had given a valuable consideration for it, or received it in the regular course of business, and the court below gave judgment for the defendant, this court could not decide whether that judgment was erroneous or not, and would have been compelled to remand the case. Ib.

57. (Dec., 1857.) Every special verdict, in order to enable the appellate court to act upon it, must find the facts on which the court is to pronounce the judgment according to law, and not merely state the evidence of facts. Suydam v. Williamson, 20 How. 427.

58. A special verdict requires the presence and assent of the court; and a bill of exceptions must always be signed and sealed by the judge. Ib.

59. (Oct., 1878.) If that court [the Supreme Court of Utah] reverses the judgment because the evidence does not sustain the findings, other findings must be made before the case can be put in condition for hearing here; but, if it has all the evidence which could be considered below, should the case be remanded, it may state the facts established by the evidence and render judgment. On an appeal to this court, the case, if otherwise properly here, will be determined upon the facts so stated. Stringfellow v. Cain, 9 Otto, 610.

60. If the findings of the District Court be sustained, and its judgment affirmed, or if its judgment be reversed for the reason that the findings are not sufficient to support the judg ment, such findings are, in effect, adopted by said Supreme Court, and they, for the purpose of an appeal here, furnish a sufficient statement of the facts of the case, within the meaning of the act "concerning the practice in territorial courts and appeals therefrom," approved April 7, 1874. Supra. Ib. 61. (Oct., 1880.) The ruling in The Abbotsford (98 U. S.

440), that, under the act of Feb. 16, 1875 (18 Stat. 315), the finding of facts by the Circuit Court, in admiralty cases, is conclusive, and that only rulings upon questions of law can be reviewed by bill of exceptions, reaffirmed. The Benefactor, 12 Otto, 214.

62. (Oct., 1880.) in Utah, issues are

Where, under the practice established tried by the court, its findings of fact should be announced and filed before the entry of the judg Kahn v. Smelting Co., 12 Otto, 641.

ment.

63. After such an entry, an additional finding, made at the request of either party without notice to the other, forms no part of the record. Ib.

64. In a suit to compel an account for the proceeds of a mining claim, a finding by the court that there was no such co-tenancy between the parties in the mine in controversy as to entitle the plaintiff to an accounting, is a mere legal inference, and not a sufficient finding of fact upon which to base a decree. Ib.

ORIGINAL PAPERS.

65. (Oct., 1879.) Papers properly belonging to the files of a court should not be removed therefrom, except in cases of positive necessity. When, therefore, an appeal is taken, no order for transmitting such papers ought to be made, unless the actual inspection of them as originals is required to enable the appellate court to give them their just and full effect in the determination of the suit. Craig v. Smith, 10 Otto, 226.

66. Where, on an appeal, papers have been improperly sent here, the order of the court below will be closely examined to determine whether they are included in its terms. Ib.

67. Where, in a case involving the infringement and validity of letters-patent, the Circuit Court, on the allowance of an appeal from its final decree, directed the clerk to transmit with the transcript "the original exhibits, patent certificates,

drawings, and models on file, along with and as part of the record and transcript," — Held, that certain affidavits sent here, but not copied into the transcript, although they had been filed as "exhibits" with the bill and answer thereto, and by consent treated and read as depositions on the hearing below, cannot be considered here as proofs in the cause, as they are not embraced by the order, the purpose of which was to send what had been exhibited below, as contradistinguished from what had been read. Ib.

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1. In all cases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant, as the case may be, to docket the cause and file the record thereof with the clerk of this court within the first six days of the term; and if the writ of error or appeal shall be brought from a judgment or decree rendered less than thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant to docket the cause and file the record thereof with the clerk of this court within the first thirty days of the term; and if the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the case docketed and dismissed, upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause, and certifying that such writ of error or appeal has been duly sued out and allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court.

2. But the defendant in error or appellee may, at his option, docket the cause, and file a copy of the record with the clerk of the court; and if the case is docketed, and a copy of the record filed with the clerk of this court by the plaintiff in error or appellant, within the periods of time above limited and prescribed by this rule. or by the defendant in error or appellee, at any time thereafter during the term, the case shall stand for argument at the term.

3. Upon the filing of the transcript of a record, brought up by writ of error or appeal, the appearance of the counsel for the plaintiff in error or appellant shall be entered.

4. In all cases where the period of thirty days is mentioned in this rule, it shall be extended to sixty days in writs of error and appeals from California, Oregon, Washington, New Mexico, Utah, Nevada, Arizona, Montana, and Idaho.

RULE 9. DOCKETING CASES. DECISIONS 1-54.

1. (Feb., 1812.) The rule to dismiss a writ of error for not filing the transcript of the record within the first six days of the term, does not apply to cases where the transcript shall have been filed before the motion to dismiss. Bingham v. Morris, 7 Cranch, 99.

2. (Feb., 1821.) An equity suit, where an appeal has been taken from the Circuit Court to this court, but not prosecuted, will be dismissed upon producing a certificate from the court below, that the appeal has been taken and not prosecuted. Randolph v. Barbour, 6 Wheat. 128.

3. (Feb., 1821.) An admiralty suit, where an appeal has been taken from the Circuit Court to this court, but not prosecuted, will be dismissed, upon producing a certificate from the court below, that the appeal has been taken but not prosecuted. The Jonquille, 6 Wheat. 452.

4. (Jan., 1830.) Where an appeal has been dismissed, the appellant having omitted to file a transcript of the record within the time required by the rule of court, an official certificate of the dismissal of the appeal may not be given by the clerk during the term. The appellant may file the transcript with the clerk during the term, and move to have the appeal reinstated. To allow such a certificate would be to prejudge such a motion. Bank of United States v. Swan, 3 Pet. 68.

5. (Jan., 1832.) Appeal dismissed; appellees having failed to lodge a transcript of the record of the cause with

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