us by both parties as decisive of it. But it is said that the trial court in effect made a finding on that issue as a result of its other findings; that the finding that the several loans which formed the basis of the suit were made by the bank to said H. G. & H. W. Stevens “relying upon and in consideration of said agreement and guaranty" is on the authority of Fox v. Haarstick, 156 U. S. 674, 15 Sup. Ct. 457, 39 L. Ed. 576, the equivalent of a finding against the defendant on the issue as to partnership tendered by him.

We think the findings as made cannot fairly be held to involve or imply a finding on the issue in question. Conceding that the loans were made "relying upon and in consideration of said agreement of guaranty," yet that concession does not determine what the parties meant by the ambiguous and indefinite reference to "H. G. & H. W. Stevens" found in the guaranty. In other words, the loans may have been made in reliance upon and in consideration of the guaranty, and yet may or may not have been made to H. G. and H. W. Stevens as copartners or on their joint liability.

Special findings by a trial judge in actions at law made pursuant to the provisions of Act March 3, 1865, c. 86, 13 Stat. 501, when a jury has been waived have the same effect as special verdicts of a jury. Section 649, Rev. St. 1878; Norris v. Jackson, 9 Wall. (U. S.) 125; Miller v. Life Ins. Co., 12 Wall. (U. S.) 285, 301. The latter must embrace a finding on every material issue joined in the case. Patterson v. United States, 2 Wheat. (U. S.) 221; Barnes v. Williams, 11 Wheat. (U. S.) 416; Prentice v. Zane's Adm'r, 8 How. (U. S.) 470, 484; Graham v. Bayne, 18 How. 60, 63; Ward v. Cochran, 150 U. S. 597, 608.

When findings are not made on all the material issues, the result is a mistrial and the cause must be remanded for a new trial. Cases, supra, and Suydam v. Williamson, 20 How. (U. S.) 427, 441.

There was, in our opinion, a clear disregard of this well-settled rule in the trial of this case. No finding was made on a material and vital issue joined between the parties. Without that finding the judgment as rendered cannot be sustained. The defendant assigned for error that the judgment as rendered was not justified by the facts as found and from what has been said that assignment must be held good.

The judgment is reversed, and the cause remanded to the Circuit Court, with directions to grant a new trial.1

1 See, accord, The E. A. Packer, 140 U. S. 360 (1891). See also Copelin v. Insurance Co., 9 Wall. 461, 467 (U. S. 1869); Supervisors v. Kennicott, 103 U. S. 554, 556-557 (1880). Cf. First Nat. Bank v. Northwestern Nat. Bank, 152 I11. 296, 300-303 (1894). As to the entry of judgment in a court of review on special findings of the trial court, compare Fort Scott v. Hickman, 112 U. S. 150, 164-165 (1884), with Exchange Nat. Bank v. Third Nat. Bank, 112 U. S. 276, 293 (1884).

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 52. FINDINGS BY THE COURT.

(a) Effect. In all actions tried upon the facts without a jury,1 the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court.2

(b) Amendment. Upon motion of a party made not later than 10 days after entry of. judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment.*

1 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 58, proposes to insert "or with an advisory jury." Cf. Rule 39 (c), Ch. XIII, § 5, infra.

2 See Notes to [Federal] Rules of Civil Procedure (1938) 46-48. Cf. Federal Equity Rules (1912) Rule 701⁄2.

Second Preliminary Draft of Proposed Amendments, supra, 59, proposes to add at the end of Rule 52(a) the following “If an opinion or memorandum of decision is filed, the findings of fact and conclusions of law may be incorporated as a part of the opinion or memorandum. Findings of facts and conclusions of law are unnecessary on a decision of a motion under Rules 12 and 56 or any other motion except as provided in Rule 41(b) [p. 347, supra].” 3 For Rule 59, see p. 442, supra.

4 See Clark and Stone, "Review of Findings of Fact," 4 U. Chi. L. Rev. 190 (1937). See also Chestnut, "Analysis of Proposed New Federal Rules of Civil Procedure," 22 A. B. A. J. 533, 540 (1936); Blume, "Review of Facts in Non-Jury Cases," 20 J. Am. Jud. Soc. 68 (1936); Second Preliminary Draft of Proposed Amendments, supra, 59–61.

SECTION 7

DEFAULT

EAST-INDIA CO. v. GLOVER.

NISI PRIUS. 1725.

1 Strange 612.

THE plaintiffs declared upon a sale of coffee at so much per hundred, which the defendant was to take away by such a time, or answer in damages. There was judgment by default and on executing a writ of inquiry before Chief Justice PRATT at Guildhall, he refused to let the defendant in to give evidence of fraud on the side of the plaintiffs at the sale, because he said the defendant had admitted the contract to be as the plaintiff had declared, by suffering judgment by default, instead of pleading non assumpsit; and now they were only upon the quantum of damages.1

RAYMOND v. DANBURY. & NORWALK RAILROAD CO. CIRCUIT COURT OF THE UNITED STATES, DISTRICT OF CONNECTICUT. 1877.

14 Blatchford 133.2

SHIPMAN, J. This is an action of tort, to recover damages for an injury to the plaintiff, arising from the negligence of the defendants. The defendants have suffered a default, and have thereby admitted a cause of action as alleged, but not the alleged extent of the injury, and the question now before the Court is as to the tribunal by which the quantum of damages is to be ascertained. The plaintiff insists that he has a constitutional right to have the questions of fact in regard to damages determined by a jury, while the defendants assert that, in accordance with the practice of the State Courts in Connecticut, the damages are to be assessed by the Court.

The seventh amendment to the Constitution of the United States provides that "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." By the first clause of the amendment, the right of trial by jury, in common law actions, was guaranteed. The right

1 See Ames, Cases on Pleading (1905) 66, n. 1: “. . . a default, like a demurrer, is a constructive admission of the truth of the adversary's pleading." 2 Also reported in 20 Fed. Cas. 332, No. 11,593, and in 43 Conn. 596.

and the same right of jury trial which then existed was to remain undisturbed. In some of the State Constitutions the same idea is expressed by the phrase "shall remain inviolate." By the common law, at the date of the adoption of the Constitution, the trial of all issues of fact must be by a jury. By issues of fact are meant questions of fact, as distinguished from questions of law, which the result of the pleadings in each case shows to be in dispute or controversy between the parties; and a jury trial in issues of fact was the right of the litigant. In harmony with the constitutional right afterwards guaranteed by the seventh amendment, Congress provided, in the twelfth section of the act of September 24th, 1789, (1 U. S. Stat. at Large, 79, 80,) that the trial of all issues of fact shall, in all suits, except those of equity and of admiralty and maritime jurisdiction, be by jury. But the assessment of damages, upon a default, either in actions of tort or of contract, stood upon a different footing from the trial of issues of fact. In the early history of the common law, the subject of the ascertainment of damages was in some confusion. The Courts frequently fixed the amount of damages on a judgment by default and on demurrer, (Rolle's Abridgment, Tit. Damages;) and, though the justices use to award inquest of damages, when they give judgment by default, yet they themselves may tax the damages, if they will." (Sedgwick on Damages, 598; Viner's Abr., Damages, I.) Courts had also the right of revising the amount of damages which had been assessed upon a writ of inquiry. In 1765, the date of the publication of the first volume of Blackstone's Commentaries, the practice had become settled, that, upon a default, damages should be assessed upon a writ of inquiry, by a sheriff's jury; but a practice was "established in the Courts of King's Bench and Common Pleas, in actions where judgment is recovered by default upon a bill of exchange or a promissory note, to refer it to the master or prothonotary, to ascertain what is due for principal, interest and costs, whose report supersedes the necessity of a writ of inquiry." (3 Black. Comm. by Sharswood, 398, note 11.) In 1848, before the enactment of the statute of 15 and 16 Vict., (ch. 76, sec. 94,) in regard to the ascertainment of damages by a master, in actions of contract, it is said, in Whitaker v. Harold, (12 Jurist, 395,) an action of covenant, that the Court of Queen's Bench had the power to assess damages, on demurrer or default, without the intervention of a jury. The assessment of damages by a jury, in actions of tort, was, however, a matter of practice, and not of right. Chief Justice Wilmot held, in 1770, as had been previously declared in 1764, that a writ of inquiry, in an action of tort, is an inquest of office, to inform the conscience of the Court, which could itself have assessed the damages, without any inquest. (Beardmore v. Carring

ton, 2 Wils., 244; Bruce v. Rawlins, 3 Wils., 61; 2 Finlason's Reeve's History of English Law, 610.) 1

1

The practice in this State, at the date of the adoption of the Constitution, in regard to the assessment of damages, is easily ascertained. Judge Swift, in his System, published in 1796, says: "Our Courts possess the same power to assess damages as a jury in England, upon a writ of inquiry issued to the sheriff for that purpose. There, in these cases, the Court must issue a writ to the sheriff, commanding him, by twelve men, to inquire into the damages, and make return to the Court, which process is called a writ of inquiry. The sheriff sits as judge, and there is a regular trial by twelve jurors, to assess the damages. This mode of proceeding must be productive of expense and delay; and the practice of this State, introduced by our Courts, without the authority of a statute, of assessing the damages themselves, without the intervention of a jury, is one of the many instances in which we have improved upon the common law of England." (2 Swift's System, 268.) This practice of the Courts was afterwards sanctioned by statute, (Revision of 1821,.sec. 59, p. 50,) and has remained the law of the State ever since.

The practice of the United States Courts in the different Circuits has not been uniform. The more common method has been to assess damages by a jury, upon a writ of inquiry, but it is believed that the practice has conformed to the usages of the State in which the Circuit Court was held. (2 Abbott's U. S. Practice, 50.) In this District, neither the custom of calling in a marshal's jury to assess damages, nor the assessment by a petit jury, under the direction of the Court, has prevailed.

The conclusion is, that the assessment of damages by a jury, upon a default, is matter of practice and not of right; and that the assessment should be made in this case according to the uniform practice of the State Courts. Let the damages be assessed by the Court, or if the parties agree, by the clerk, as committee, to find and report the facts and the amount of damages.2

COLLINS v. GIBBS.

COURT OF KING'S BENCH. 1759.

2 Burrow 899.

Mr. Burland had moved, on Thursday last, in arrest of judgment, after a judgment by default, and a writ of inquiry executed, in an action upon the case on assumpsit.

1 A part of the opinion dealing with the practice in the federal courts is omitted.

2 Contra: Central & M. R. R. Co. v. Morris, 68 Tex. 49, 61 (1887) (semble); Hickman v. Baltimore & Ohio R. R. Co., 30 W. Va. 296 (1887). See Note, 20 L. R. A. (N.s.) 1 (1909).