was made was a matter of choice and in no wise of necessity. The point is covered by the Toledo, &c. R. R. Co. v. Owen, 43 Ind. 405. We think the decision there was correct.

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"4. Although the plaintiff's evidence showed that the accident resulted from the plaintiff's negligence, the court charged that the burden of proving contributory negligence rests on the defendant; and it will not avail the defendant, unless it has been established by a preponderance of evidence.'"

We have said, that riding on the top of a freight-car in the night involved peril. When commanded to go there, the plaintiff had no choice but to obey, or to leave his cattle to go forward without any one to accompany and take care of them. The command was wrong. To give him no warning was an aggravation of the wrong. He, however, rode safely to the switch, standing in one place. He had a right to assume that the posture and place would continue to be safe. He had no foreknowledge of the coming shock. The conductor knew it, but gave him no word of caution or notice. He was unaware of danger until the catastrophe was upon him. The behavior of the conductor was inexcusable. part of the plaintiff, in what did it consist? We find nothing in the record which affords any warrant for such an imputation. As the case went to the jury, the opposite was established. There was no proof to the contrary. Nevertheless, the court, out of abundant caution, charged the jury upon the hypothesis that there might be some testimony tending possibly to support the adverse view. The instruction contained two elements:

If there was fault on the

(1.) That the burden of proof rested on the defendant.

This was correct. Railroad Company v. Gladden, 15 Wall. 401.

(2.) That "it," meaning contributory negligence, could “not avail the defendant, unless established by a preponderance of evidence."

This, also, was correct. The court did not say that if such negligence were established by the plaintiff's evidence, the defendant could have no benefit from it, nor that the fact could only be made effectual by a preponderance of evidence, coming exclusively from the party on whom rested the burden of

proof. It is not improbable that the charge was so given by the court from an apprehension that the jury might without it be misled to believe that it was incumbent on the plaintiff to show affirmatively the absence of such negligence on his part, and that if there was no proof, or insufficient proof, on the subject, there was a fatal defect in his case. It was, therefore, eminently proper to say upon whom the burden of proof rested; and this was done without in any wise neutralizing the effect of the testimony the plaintiff had given, if there were any, bearing on the point adversely to him. We think the instruction was properly expressed. If there was any ambiguity unfavorable to the defendant, it was the duty of his counsel to bring it to the attention of the court, and ask its correction. Lock v. United States, 2 Cliff. 574. This was not done, perhaps because it was deemed unnecessary. If the defendant had, in the first instance, required any charge upon the subject, it should have been refused. It is not the duty of the court to instruct where the instruction demanded assumes a theory of fact which is unsupported or contradicted by the evidence. On the contrary, it is error to do so; and the jury should be distinctly told that the requisite evidence is wanting. Such instructions cannot aid the jury, and may confuse and mislead them. Michigan Bank v. Eldred, 9 Wall. 544; Ward v. United States, 14 id. 28.

66 5. The court refused the motion of the defendant to instruct the jury to find specially upon particular questions of fact involved in the issues, in the event they should find a general verdict."

These questions of fact were submitted by the counsel for the defendant. Upon looking into them, we find they were nine in number. All of them related to the question of negligence on the part of the plaintiff. It is insisted that they were within the act of Congress of June 1, 1872 (17 Stat. 197, sect. 5), and that hence the court below erred in declining to require the jury to find in answer to them, in addition to the general verdict. We had occasion to consider this statute in Nudd v. Burrows, 91 U. S. 441, and see no reason to depart from the views there expressed. We said the section in question had its origin in the code enactments of many of the

States, and was intended to relieve the legal profession from the burden of studying and of practising under the two distinct and different systems of the law of procedure in the same locality, one obtaining in the courts of the United States, the other in the courts of the State; but that it was not intended to fetter the judge in the personal discharge of his accustomed duties, or to trench upon the common-law powers with which in that respect he is clothed. Whether Congress could do the latter was left open to doubt. It was not then, and it is not now, necessary to decide that question. The statute expressly recognizes the distinction between proceedings in equity, in admiralty, and at common law. The separate character of the two former is recognized by the Constitution, and it protects them. The latter Congress can change and regulate as it may see fit, within the limits of its constitutional authority. Here, the question is one of legislative intent. The intention of the law-maker constitutes the law: a thing may be within the letter of a statute, and not within its meaning; and within its meaning, though not within its terms. 9 Bouv. Bac. Ab. title Stat., sect. 5, pp. 246, 247; Burgett v. Burgett, 1 Ohio, 221; Stater v. Cave, 3 Ohio St. 85; United States v. Babbit, 1 Black, 61.

Where a State law, in force when the act was passed, has abolished the different forms of action, and the forms of pleading appropriate to them, and has substituted a simple petition or complaint setting forth the facts, and prescribed the subsequent proceedings of pleading or practice to raise the issues of law or fact in the case, such law is undoubtedly obligatory upon the courts of the United States in that locality. There may be other things, not necessary now to be specified, with respect to which it is also binding. But where it prescribes the manner in which the judge shall discharge his duty in charging the jury, or the papers which he shall permit to go to them in their retirement, as in Nudd v. Burrows, or that he shall require the jury to answer special interrogatories in addition to their general verdict, as in this case, we hold that such provisions are not within the intent and meaning of the act of Congress, and have no application to the courts of the United States. These are all matters relating merely to the mode of submitting the case to the jury. The conformity is required

to be "as near as may be " not as near as may be possible, or as near as may be practicable. This indefiniteness may have been suggested by a purpose: it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such State statutes which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in their tribunals.

While the act of Congress is to a large extent mandatory, it is also to some extent only directory and advisory. The constitution of Indiana, art. 7, sect. 5, requires that "the Supreme Court shall, upon the decision of every case, give a statement of each question arising in the record of such case, and the decision of the court thereon." This was held to be directory, and not mandatory. Willets v. Ridgeway, 9 Ind. 367.

The Criminal Code of Practice of Arkansas provided that the court should admonish the jury that it was their duty not to allow any one to speak to them upon any subject connected with the trial, nor to converse among themselves upon any such subject, until the cause was finally submitted to them. It was held this provision was only directory and cautionary, and that the omission to comply with it was not error, and did not affect the validity of the verdict. Thompson v. The State, 26 Ark. 326. See also Wood v. Terry, 4 Lans. 86; State v. Carney, 20 Iowa, 82; Bowers v. Sonoma, 32 Cal. 66; Hill v. Boyland, 40 Miss. 618.

We think the learned judge below decided correctly in refusing to submit the interrogatories to the jury.

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6. The motion for a new trial should have been granted in the court below."

In the courts of the United States, such motions are addressed to their discretion. The decision, whatever it may be, cannot be reviewed here. This is a rule of law established by this court, and not a mere matter of proceeding or practice in the Circuit and District Courts. Henderson v. Moore, 5 Cranch, 11; Boswell v. De la Lanza, 20 How. 29; Schuchardt v. Allen, 1 Wall. 371. It is, therefore, not within the act of Congress of June 1, 1872, and cannot be affected by any State law upon the subject. Judgment affirmed.

MARTIN v. HAZARD POWDER COMPANY.

The doctrine announced in Jerome v. McCarter, 21 Wall. 17, affirmed, and applied to this case.

ON motion for a rule upon the plaintiff in error to file a new supersedeas bond.

Mr. S. F. Phillips for the defendant in error,-in support of the motion.

Mr. H. C. Alleman for the plaintiff in error, in opposition.

MR. CHIEF JUSTICE WAITE delivered the opinion of the

court.

We held in Jerome v. Mc Carter, 21 Wall. 17, after much consideration, that if, "after the security has been accepted, the circumstances of the case, or of the parties, or of the sureties upon the bond, have changed, so that security which, at the time it was taken, was good and sufficient, does not continue to be so, we might, upon a proper application, so adjudge and order as justice might require. But upon facts existing at the time the security was accepted, the action of the justice, within the statute and the rules of practice adopted for his guidance, is final."

The showing made in this case does not satisfy us that the alleged insufficiency of the security taken when the writ of error was sued out, arises from any change in the circumstances of the sureties since the acceptance and approval of the bond. Motion denied.

THE "ATLAS."

1. Owners of a ship are not liable, under existing laws, for any loss, damage, or injury by a collision, occasioned without their privity or knowledge, beyond the amount of their interest in such ship and her cargo at the time the collision occurred.

2. The true measure of compensation to an innocent party, in a case of collision, is damages to the full amount of loss actually suffered by him.

3. The shipper or consignee of the cargo of a vessel, being innocent of all wrong, bears no proportion of the loss resulting from a collision. He may pursue his remedy at common law; or in admiralty, by a proceeding in rem, or