issues baggage check on passenger's personal effects, it assumes the safe transportation of such baggage; New York Central etc. R. R. Co. v. Fraloff, 100 U. S. 29, 25 L. Ed. 534, awarding damages for loss of baggage, including valuable laces stolen from passenger's trunk (affirming 12 Blatchf. 489, Fed. Cas. 5026); The Majestic, 60 Fed. 630, 9 C. C. A. 161, 23 L. R. A. 752, awarding damages for injury to baggage, notwithstanding exemption printed on back of ticket; Kansas City etc. Ry. Co. v. McGahey, 63 Ark. 346, 58 Am. St. Rep. 112, 36 L. R. A. 782, 38 S. W. 660, holding railroad not liable for burning of baggage not called for within reasonable time; Kansas City etc. Ry. Co. v. State, 65 Ark. 366, 67 Am. St. Rep. 935, 41 L. R. A. 334, 46 S. W. 422, holding merchandise samples not "baggage"; Metz v. California Southern R. R. Co., 85 Cal. 330, 20 Am. St. Rep. 230, 9 L. R. A. 431, 24 Pac. 610, refusing recovery for loss of lady's jewelry stolen from man's trunk while traveling alone; Staub v. Kendrick, 121 Ind. 230, 6 L. R. A. 621, 23 N. E. 80, holding carrier liable for loss of valise and contents, including traveling salesman's catalogue; Oakes v. Northern Pac. R. R. Co., 20 Or. 396, 23 Am. St. Rep. 127, 12 L. R. A. 319, 26 Pac. 232, awarding damages for loss of trunks containing theatrical company's effects; Kansas etc. Ry. Co. v. McGahey, 63 Ark. 347, 349, 58 Am. St. Rep. 113, 36 L. R. A. 783, 784, 38 S. W. 660, defining baggage and carriers' liability thereon at destination.

What is baggage to which passenger is entitled. Note, 71 Am. Dec. 158, 162.

What constitutes baggage. Note, 21 Ann. Cas. 730, 735.

Book or manuscript as baggage. Note, 1 N. C. C. A. 69.

Surgical instruments, belonging to an army surgeon, traveling with troops, may properly be regarded as part of his baggage.

Approved in Wood v. Cunard, 192 Fed. 295, 296, 41 L. R. A. (N. S.) 371, 112 C. C. A. 551, 1 N. C. C. A. 68, 69, on libel of steamship company for loss of trunk, manuscript of a manual on Greek grammar, used by a teacher was properly included with his baggage; Yazoo etc. Railroad Co. v. Baldwin, 113 Tenn. 218, 81 S. W. 602, female's clothing, ornaments, bank-book and contents and zither key, carried in trunk, constitute baggage, though household goods are not; Runyan v. Central R. R. Co., 61 N. J. L. 541, 68 Am. St. Rep. 712, 43 L. R. A. 287, 41 Atl. 369, in determining rights of passenger to take small packages of merchandise with him.

12 Wall. 275-285, 20 L. Ed. 395, KEARNEY v. CASE.

In absence of bill of exceptions, statement of facts, signed by both parties after suing out a writ of error, is no part of record, and will be disregarded.

Approved in Scaife v. Western etc. Land Co., 87 Fed. 311, 30 C. C. A. 661, issuing mandamus to trial judge to settle bill of exceptions.

Case in appellate court must be tried on rulings of lower court, as they appear by the record.

Approved in Alder v. Edenborn, 198 Fed. 933, where case is heard by referee, a hearing presented on bill of exceptions cannot be had.

If facts are to be considered by higher court, they must appear by bill of exceptions, or by an agreed statement submitted to court, or by finding of court under statute.

Approved in Fitzgerald v. Bassford, 142 Fed. 134, 73 C. C. A. 352, where action at law tried without jury and no special findings made, assignment that court erred in rendering judgment in favor of plaintiff presents no reviewable question; Trustees of Meth. Ep. Church v. Browne, 39 Md. 162, dismissing appeal where facts and law do not appear on the record.

Parties cannot by consent make up a case for higher court, after it has passed from control of court below..

Approved in Bethel v. Matthews, 13 Wall. 3, 20 L. Ed. 556, following rule.

Trial of issues in Circuit Courts must be by jury, except in cases of equity, admiralty, maritime jurisdiction, and where the parties waive a jury.

Approved in Craven v. Clark, 186 Fed. 960, upholding practice of appointing an auditor as preliminary to jury trial where case is complicated; Swift & Co. v. Jones, 145 Fed. 493, 76 C. C. A. 253, circuit judge has no power, even with consent of parties, to order trial of issues in action at law before special master authorized to hear and pass on facts and report findings to court; Sulzer v. Watson, 39 Fed. 415, holding action on book account must be tried by jury; Thomas v. American etc. Mortgage Co., 47 Fed. 559, 12 L. R. A. 689, applying rule in holding no Federal jurisdiction of action on note.

In Federal courts jury trial may be waived by the parties, and judg ment of court in such a case is valid, and in absence of statute there can be no review of findings of fact.

Approved in Wm. Edwards Co. v. La Dow, 230 Fed. 382, 383, and Ladd & Tilton Bank v. Lewis A. Hicks Co., 218 Fed. 314, 134 C. C. A. 106, both holding in absence of written stipulation waiving jury, rulings of court on trial are not reviewable; Elkin v. Denver Engineering Wks. Co., 181 Fed. 685, 105 C. C. A. 1, where case had been referred to referee by consent, on coming in of report, only power possessed by court was to confirm it or reject it; Erkel v. United States, 169 Fed. 624,

95 C. C. A. 151, applying rule in action of ejectment; Brock v. Fuller Lumber Co., 153 Fed. 275, 82 C. C. A. 402, in action to assess damages on bond after default, written stipulation not necessary to waiver of jury; Belt v. United States, 4 App. D. C. 31, relating to waiver of jury by accused in a criminal matter; Boogher v. New York Life Ins. Co., 103 U. S. 95, 26 L. Ed. 311, applying rule to judgment on findings of referee in action on bond; Rogers v. United States, 141 U. S. 556, 35 L. Ed. 856, 12 Sup. Ct. 94, affirming judgment of lower court; Perego v. Dodge, 163 U. S. 166, 41 L. Ed. 118, 16 Sup. Ct. 974, holding objection of trial without jury cannot be first taken in appellate court; Grayson v. Lynch, 163 U. S. 472, 41 L. Ed. 232, 16 Sup. Ct. 1066, holding findings of fact by court have same effect as verdict of jury; Thistle v. Hamilton, 4 Dill. 164, Fed. Cas. 13,884, holding parties can waive jury on appeal from judgment of District Court in bankruptcy; Rush v. Newman, 58 Fed. 160, 7 C. C. A. 136, holding appellate court can consider only sufficiency of declaration to support judgment; Walker v. Miller, 59 Fed. 870, 8 C. C. A. 331, holding appellate court will only consider the sufficiency of pleadings and findings; United States v. Arnold, 69 Fed. 990, 16 C. C. A. 575, applying rule in appeal from denial of habeas

corpus.

Under act of 1865 there can be no review of a judgment on issues of fact submitted to Circuit Court unless a jury was waived by written agreement filed with clerk, and this fact must affirmatively appear in record.

Approved in Columbus Compress Co. v. United States Fidelity etc. Co., 186 Fed. 488, 108 C. C. A. 465, where record showed parties announced they were ready for trial and formally waived jury in open court, court cannot assume jury was waived by written stipulation; Gilman v. Illinois etc. Tel. Co., 91 U. S. 614, 23 L. Ed. 409, Boogher v. New York Life Ins. Co., 103 U. S. 96, 26 L. Ed. 312, and Madison County v. Warren, 106 U. S. 623, 27 L. Ed. 311, 2 Sup. Ct. 86, all following rule; Bond v. Dustin, 112 U. S. 607, 28 L. Ed. 836, 5 Sup. Ct. 297, United States v. Arnold, 69 Fed. 992, 16 C. C. A. 575, and Duncan v. Atchison etc. R. R., 72 Fed. 811, 19 C. C. A. 202, all applying rule and affirming judgment of lower court; Stepp v. National Life etc. Assn., 37 S. C. 436, 16 S. E. 140, holding party at whose demand issues are withdrawn from jury cannot question it on appeal; Phillips v. Moore, 100 U. S. 213, 25 L. Ed. 604, arguendo.

Where party is present by counsel and goes to trial without objection, he thereby waives his right to jury.

Approved in Ryan v. Carter, 93 U. S. 81, 23 L. Ed. 808, holding findings of fact by court have same effect as verdict of jury; Perego v. Dodge, 163 U. S. 166, 41 L. Ed. 118, 16 Sup. Ct. 974, holding objection

to trial without jury cannot be made for first time in appellate court (affirming 9 Utah, 7, 33 Pac. 222); United States v. Harris, 106 U. S. 635, 27 L. Ed. 292, 1 Sup. Ct. 606, arguendo.

Where issues of fact are presented and there is nothing to show that party complaining of error was present by himself or counsel at trial, and no jury was called, it is error for court to try those issues without a jury. Approved in Morgan v. Gay, 19 Wall. 83, 22 L. Ed. 100, following

rule.

Where there is no error of which court can take cognizance judgment below will be affirmed.

Approved in Rogers v. United States, 141 U. S. 556, 35 L. Ed. 856, 12 Sup. Ct. Rep. 94, following rule.

12 Wall. 285-304, 20 L. Ed. 398, MILLER v. BROOKLYN LIFE INSURANCE CO.

Issues of fact in civil cases in Circuit Court may be tried by court without a jury whenever the parties file written stipulation with clerk, waiving a jury.

Approved in Rhodes v. U. S. Nat. Bank, 66 Fed. 515, 13 C. C. A. 612, 34 L. R. A. 744, refusing to review a general finding.

When issues of fact are tried without a jury in Circuit Courts, finding may be general or special, and it has same effect as verdict of jury.

Approved in Towle v. First Nat. Bank, 153 Fed. 567, 82 C. C. A. 520, special findings in action at law when jury has been waived, have same effect as special verdicts of jury; Anglo-American Land etc. Co. v. Lombard, 132 Fed. 734, 68 C. C. A. 89, determining sufficiency of special finding of court in action at law; Merchants' Mut. Ins. Co. v. Folsom, 18 Wall. 250, 21 L. Ed. 833, overruling exceptions to refusal of court to make special findings; Ryan v. Carter, 93 U. S. 81, 23 L. Ed. 808, refusing to review questions of fact; The Abbotsford, 98 U. S. 443, 25 L. Ed. 169, Grayson v. Lynch, 163 U. S. 473, 41 L. Ed. 233, 16 Sup. Ct. 1066, Bowden v. Burnham, 59 Fed. 753, 8 C. C. A. 248, Key West v. Baer, 66 Fed. 442, 13 C. C. A. 572, and Rhodes v. U. S. Nat. Bank, 66 Fed. 515, 34 L. R. A. 744, 13 C. C. A. 612, all refusing to review evidence after findings by court.

In a case tried by Circuit Court without a jury, exceptions, if duly taken at time rulings are made, and properly presented by a bill of exceptions, may be reviewed in Supreme Court.

Approved in Richmond v. Smith, 15 Wall. 438, 21 L. Ed. 202, reviewing ruling sustaining demurrer to plea; Merchants' Mut. Ins. Co. v. Folsom, 18 Wall. 248, 21 L. Ed. 833, overruling exceptions to refusal of

court to make special finding; Crews v. Brewer, 19 Wall. 72, 22 L. Ed. 64, dismissing appeal in absence of authorized statement of facts in record; Springfield Fire etc. Ins. Co. v. Sea, 21 Wall. 161, 22 L. Ed. 512, affirming judgment where exceptions were not specific; Tyng v. Grinnell, 92 U. S. 469, 23 L. Ed. 734, refusing to review question of fact; The Abbotsford, 98 U. S. 443, 25 L. Ed. 169, Grayson v. Lynch, 163 U. S. 473, 41 L. Ed. 232, 16 Sup. Ct. 1066, and Rhodes v. United States Nat. Bank, 66 Fed. 515, 34 L. R. A. 744, 13 C. C. A. 612, both refusing to review evidence; British etc. Mining Co. v. Baker etc. Mining Co.,. 139 U. S. 223, 35 L. Ed. 147, 11 Sup. Ct. 523, affirming judgment where no exceptions to rulings were presented; Miller v. Houston etc. Ry. Co., 55 Fed. 369, 5 C. C. A. 134, and Key West v. Baer, 66 Fed. 442, 13 C. C. A. 572, both applying rule in United States Circuit Court of Appeals; Trustees of Methodist Episcopal Church v. Browne, 39 Md. 162, affirming judgment in absence of bill of exceptions or agreed statement of facts.

In case tried by Circuit Court without jury, when finding is special, Supreme Court may determine whether facts found are sufficient to support the judgment.

Approved in Tyng v. Grinnell, 92 U. S. 469, 23 L. Ed. 734, and Ryan v. Carter, 93 U. S. 81, 23 L. Ed. 808, both applying rule, and affirming lower judgments; British etc. Mining Co. v. Baker etc. Mining Co., 139 U. S. 223, 35 L. Ed. 147, 11 Sup. Ct. 523, holding statement of court's reasons for its conclusions does not render finding special; Miller v. Houston etc. Ry. Co., 55 Fed. 369, 5 C. C. A. 134, Key West v. Baer, 66 Fed. 442, 13 C. C. A. 572, Rhodes v. United States Nat. Bank, 66 Fed. 515, 34 L. R. A. 744, 13 C. C. A. 612, and Sayward v. Dexter, 72 Fed. 769, 19 C. C. A. 176, all applying rule in United States Circuit Court of Appeals; Trustees of Methodist Episcopal Church v. Browne, 39 Md. 162, affirming judgment in absence of bill of exceptions; Lynch v. Grayson, 7 N. M. 40, 32 Pac. 153, applying rule under territorial statute.

In case tried by Circuit Court without a jury, if finding is general, and no exceptions have been taken to rulings of court, there can be no review. Approved in West v. Houston Oil Co., 136 Fed. 350, 69 C. C. A. 169, applying rule in trespass to try title; Merchants' Mut. Ins. Co. v. Folsom, 18 Wall. 248, 21 L. Ed. 833, overruling exceptions to refusal of court to make special findings; Crews v. Brewer, 19 Wall. 72, 22 L. Ed. 64, dismissing appeal in absence of authorized statement of facts in record; Martinton v. Fairbanks, 112 U. S. 673, 28 L. Ed. 863, 5 Sup. Ct. 322, refusing to review single exception to general finding; Bowden v. Burnham, 59 Fed. 753, 8 C. C. A. 248, Rhodes v. United States Nat. Bank, 66 Fed. 515, 34 L. R. A. 744, 13 C. C. A. 612, and Sayward v.