raised by the appeal have otherwise become moot, the decree will be reversed or the appeal dismissed as has been previously described. Since an appeal in admiralty is a retrial of the suit, changes in fact and in law subsequent to its institution may be considered by the appellate court.5 Otherwise where, since the original decree, the rights of the parties have so changed as to make it improper to carry it into execution, relief can usually be had only through some form of original proceeding in the court in which the decree was rendered.6 § 711i. Review of proceedings taken by consent or by default. Where a plaintiff has voluntarily become nonsuited, he cannot have the proceedings reversed by a writ of error.1 On an appeal from a decree entered by consent, the only question which can be considered is whether the court below had jurisdiction of the previous decree, the previous decree was reversed pending the appeal, the Supreme Court remanded the cause to the Circuit Court, with instructions to allow the appellant, the defendant below, to file such supplemental bill as he might be advised, in the nature of a bill of review, or for the purpose of suspending or avoiding the decree upon the new matter arising from the reversal of the decree in the former case. Ballard v. Searls, 130 U. S. 50, 56, 32 L. ed. 846, 848. Where, pending an appeal from a decree, a former decree in the same suit on which the latter was dependent was reversed, the Supreme Court held that the second decree was thereby nullified by operation of law, and dismissed the appeal therefrom with costs to the appellant. Chicago & V. R. Co. v. Fosdick, 106 U. S. 47, 84, 85, 27 L. ed. 47, 65. Where, pending a writ of error to a judgment on a "forthcoming bond" to a former judgment, the former judgment was reversed, the Supreme Court said that the reversal of the second judgment would follow as of course, but that a certiorari was 5 Watts, Watts & Co., Limited, v. Unione Austriaca, &c., 248 U. S. 9. 6 Mackall v. Richards, 116 U. S. 45, 29 L. ed. 558; The Vaughan and Telegraph, 14 Wall. 258, 20 L. ed. 807. S. § 711i. 1 U. V. Evans, 5 Cranch, 280, 3 L. ed. 101; Evans v. Phillips, 4 Wheat. 73, 4 L. ed. 516; Central Transp. Co. v. Pullman's P. C. Co., 139 U. S. 24, 39, 35 L. ed. 55, 61. case so as to authorize it to enter any decree. Where an appeal is taken from a decree entered upon an order taking a bill in equity as confessed by defendants for want of an answer, the only question for the consideration of the appellate court is whether the allegations of the bill and the proof of service are sufficient to support the decree. The phrase, "pro forma,' usually means that a decision was rendered, not upon the conviction that it was right, but merely to facilitate further proceedings. Its insertion in a decree does not require a reversal where the record shows that the decree expresses the result of a consideration of the evidence and was not in fact pro forma.5 § 711j. Errors not prejudicial. An error that could not have been prejudicial to the plaintiff in error or the appellant is no ground for a reversal.1 2 Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; U. S. v. Babbitt, 104 U. S. 767, 26 L. ed. 921. See also Mandeville v. Holey, 1 Pet. 136, 7 L. ed. 85. 3 Masterson v. Howard, 18 Wall. 99, 21 L. ed. 764; Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105; Dobson v. Hartford Carpet Co., 114 U. S. 439, 29 L. ed. 177; O'Hara v. Mac Connell, 93 U. S. 150, 23 L. ed. 840. 4 Harvey Hubbell v. General El. Co., C. C. A., 267 Fed. 564. 5 Ibid. § 711j. 1U. S. v. U. S. Fidelity & Guaranty Co., 222 U. S. 283, 56 L. ed. 200; Norfolk Southern R. Co. v. Talbott, C. C. A., 190 Fed. 737; Delaware, L. & W. R. Co. v. Lyne, C. C. A., 193 Fed. 984. Such as the erroneous admission or exclusion of evidence which could not have affected the result, Holmes v. Goldsmith, 147 U. S. 150, 37 L. ed. 118; Meeker v. Lehigh Valley R. R., 236 U. S. 434; U. S. v. Shapleigh, C. C. A., 54 Fed. 126, 137; Dorsheimer v. Glenn, 51 Fed. 404; Am. Mfg. Co. v. Bigelow, C. C. A., 188 Fed. 34; Post Pub. Co. v. Peck, C. C. A., 199 Fed. 6, 24; Atlantic Coast Line R. Co. v. Thompson, C. C. A., 211 Fed. 889; Chicago, St. P., M. & O. Ry. Co. v. Nelson, 226 Fed. 708; Missouri Valley Bridge & Iron Co. v. Blake, C. C. A., 231 Fed. 418; B. F. Sturtevant Co. v. Champion Fibre Co., C. C. A., 232 Fed. 2; Cooper v. Jewett, C. C. A., 233 Fed. 618; Chicago Rys. Co. v. Kramer, C. C. A., 234 Fed. 245; Tacoma Ry. & Power Co. v. Cothary, C. C. A., 235 Fed. 872; Ames v. Sullivan, C. C. A., 235 Fed. 880; Great Northern Ry. Co. v. Ennis, S. C. A., 236 Fed. 17; St. Louis Merchants' Bridge Terminal Ry. Co. v. Schuerman, C. C. A., 237 Fed. 1; Daigle v. U. S., C. C. A., 237 Fed. 159; Kalloch v. Hoagland, C. C. A., 239 Fed. 252; Akalitis v. Philadelphia & Reading Coal & Iron Co., C. C. A., 239 Fed. 299; Cooperative Raw Fur Co. v. American Credit Indemnity Co., C. C. A., 240 Fed. 67; Greer v. U. S., C. C. A., 240 Fed. 320; Chiarello Bros. Co. v. Pederson, C. C. A., 242 Fed. 483; Delaware, L. & W. R. Co. v. Lanterman, C. C. A., 245 Fed. 548; Societé Nouvelle D'Armement v. Barnaby, C. C. A., 246 Fed. 68; Michigan Cent. R. Co., v. U. S., C. C. A., 246 Fed. 353; Central Iron & Coal Co. v. Hamacher, C. C. A., 248 Fed. 50; Holsman v. United States, C. C. A., 248 Fed. 193; Austro-American S. S. Co. v. Thomas, C. C. A., 248 Fed. 231; American Trading Co. V. North Alaska Salmon Co., C. C. A., 248 Fed. 665; Columbia-Knickerbocker Trust Co. v. Abbot, C. C. A., 247 Fed. 833; Buckeye Cotton Oil Co. v. Sloan, C. C. A., 250 Fed. 712; Sharples Separator Co. v. Skinner, C. C. A., 251 Fed. 25; Mullins Lumber Co. v. Williamson & Brown Land & Lumber Co., C. C. A., 255 Fed. 645; Vane v. United States, C. C. A., 254 Fed. 28; Alaska Treadwell Gold Mining Co. v. Crinis, C. C. A., 255 Fed. 810; McCurley v. National Savings & Trust Co., D. C. C. C. A., 258 Fed. 154; or an exclusion of evidence that was merely cumulative, when there was a considerable amount of evidence offered by the same party upon the same issue, Patterson v. Iaeger & S. Ry. Co., C. C. A., 178 Fed. 649. A judgment will not be reversed for an erroneous instruction to the jury where the evidence justified a direction in favor of the defendant in error. W. B. Grimes Dry Goods Co. v. Malcolm, 58 Fed. 670; Cook v. Foley, C. C. A., 152 Fed. 41, 48; Alwart Bros. Coal Co. v. Royal Colliery Co., C. C. A., 211 Fed. 313; Hornblower v. City of Pierre, C. C. A., 241 Fed. 450; Fricke v. International Harvester Co., C. C. A., 249 Fed. 869. Nor for an erroneous instruction inapplicable to the case. Crosby Lumber Co. v. Smith, C. C. A., 51 Fed. 63. Nor for an erroneous instruction which could have done no harm. Standard Oil Co. v. Brown, 218 U. S. 78, 86, 54 L. ed. 944, 945. Cf. Iron Silver Min. Co. v. Mike & S. G. & S. Min. Co., 143 U. S. 394, 36 L. ed. 201; Chicago, Rock Island & Pacific Railway Co. v. Wright, 239 U. S. 548; Kansas City, Ft. S. & M. R. Co. v. Stoner, 51 Fed. 649, 655; Betts v. Gahagan, C. C. A., 212 Fed. 120; Smith v. Robins, C. C. A., 236 Fed. 114; Stark Electric R. Co. v. McGinty Contracting Co., C. C. A., 238 Fed. 657; Pocahontas Consol Collieries Co. v. Johnson, C. C. A., 244 Fed. 369; Southern Trust Co. v. Lucas, C. C. A., 245 Fed. 286; Royal Ins. Co. v. Taylor, 254 Fed. 808. But see Deery v. Crary, 5 Wall. 795, 18 L. ed. 653; Smith v. Shoemaker, 17 Wall. 630, 21 L. ed. 717. Nor for overruling an objection that the plaintiff had an adequate remedy at law, where there was no issue of fact that could have been submitted to a jury. Southern Pac. Ry. Co. v. U. S., C. C. A., 186 Fed. 737. Nor for the denial of a motion to transfer a cause from the jury to the equity docket when the result must have been the same. Southern Ry. Co. v. Board of Com'rs of Public Works, C. C. A., 246 Fed. 383. Nor for dismissing a petition of intervention when the action was subsequently and rightly dismissed on the merits; Butler v. U. S., C. U. A., 261 Fed. 841. For rulings on pleadings held not to be prejudicial, see, Grant Bros. v. U. S., 232 U. S. 647; Lauderdale County v. Kittel, C. C. A., 229 Fed. 593; Westwater v. Murray, C. C. A., 245 Fed. 427; By the Act of February 26, 1919, "In any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects or exceptions which do not effect the substantial rights of the party." 2 It seems that it is now incumbent upon the plaintiff in error to show that a mistake in ruling is of such a nature that it is reasonable to believe it was prejudicial. West Helena Consol. Co. v. McCray, C. C. A., 256 Fed. 753. For other rulings held not to be prejudicial, see O. W. Kerr Co. v. Corry, C. C. A., 211 Fed. 647; Breakwater Co. v. Donovan, C. C. A., 218 Fed. 340; Yates v. Whyel Coke Co., C. C. A., 221 Fed. 603; Panama R. Co. v. Beckford, C. C. A., 231 Fed. 436; Daigle v. United States, C. C. A., 237 Fed. 159; Minnesota Mut. Inv. Co. v. McGirr, C. C. A., 244 Fed. 847; Buckeye Cotton Oil Co. v. Sloan, C. C. A., 250 Fed. 712; Hughitt v. Wayne County Securities Co., C. C. A., 251 Fed. 57; Copper Process Co. v. Chicago Bonding & Ins. Co., C. C. A., 262 Fed. 66. As to objections to the admission and exclusion of evidence, see supra, § 711e. see 2 Ch. 48, 40 St. at L. 1181, amending Jud. Code, § 269; supra, §§ 563a, 711g. 3 Dimmitt v. Breakey, C. C. A., 267 Fed. 792, 794. This was formerly the rule in the Second Circuit. Press Pub. Co. v. Monteith, C. C. A., 180 Fed. 356; Canadian Pac. Ry. Co. v. Black, C. C. A., 230 Fed. 798; Re Soltman, C. C. A., 249 Fed. 455; Fraina v. U. S., C. C. A., 255 Fed. 28; Miller v. Continental Shipbuilding Corporation, C. C. A., 265 Fed. 158. See also, People v. Gilbert, 199 N. Y. 10, 20 Ann. Cas. 769; Savage v. Modern Woodmen, 84 Kan. 63, 33 L.R.A. (N.S.) 773; It Harris v. State, 80 Neb. 195; Byers v. Territory, 1 Okla. Crim. Rep. 677; State v. Byrd, 41 Mont. 585; Yazoo & M. V. R. R. Co. v. Mullins, 249 U. S. 531. This rule has been approved by the American Bar Association, the New York Bar Association and the Bar Association of the City of New York. Report of Am. Bar Ass'n for 1912, Report of N. Y. State Bar Ass'n for 1912, Report of Law Reform Committee of N. Y. City Bar Ass 'n, April 27, 1912, written by Henry A. Forster, Esq. It was the original rule of the common law, Tinkler's Case, R. & R. 133; Horford v. Wilson, 1 Taunton 12, 14; per Mansfield, C. J.; Rex v. Teal, 11 East 311, per Lord Ellenborough, C. J.; Tyrwhitt v. Winne, 2 B. & Ald. 554, 559, per Abbott, C. J.; afterwards Lord Tenterden; Doe v. Tyler, 6 Bingham 561; MeLanahan v. Universal Ins. Co., 1 Peters 170, 183, per Storey, J. Unfortunately for the administration of justice a contrary rule arose and prevailed in the Federal courts as well as elsewhere, that if there be error apparent on the face of the record, a presumption of prejudice arises, which cannot be disregarded, unless the record affirmatively discloses that the error was not prejudicial. Crease v. Barrett, 1 C. M. & R. 919, A. D. 1835; Rutzen v. Farr, 4 A. & E. 53; Wright v. Tatham, 7 A. & E. 313, 330; R. v. Gibson, L.R. has been held that the statute authorizes an affirmance in a criminal case, notwithstanding errors in the admission or rejection of evidence, when the guilt of the defendant is otherwise conclusively proved. A decision based upon an erroneous ground will not be reversed when it can be properly sustained for another reason than that assigned by the court below.5 18 Q.B.D. 537, 540; Vicksburg & Meridian R. R. Co. v. O'Brien, 119 U. S. 99, 30 L. ed. 299; Mexia v. Oliver, 148 U. S. 664; 37 L. ed. 602; Cock v. Foley, C. C. A., 152 Fed. 41, 48; Mutual Reserve Life Ins. Co. v. Heidel, C. C. A., 161 Fed. 535; Norfolk & P. Traction Co. v. Miller, C. C. A., 174 Fed. 607; Consolidated Grocery Co. v. Hammond, C. C. A., 175 Fed. 641; Stewart v. Bruce, C. C. A., 189 Fed. 350; Keliher v. U. S., C. C. A., 193 Fed. 8, 20; Ayer v. Territory of New Mexico, C. C. A., 201 Fed. 497; Todd v. U. S., C. C. A., 221 Fed. 205. The history of the rule is set forth in Wigmore on Evidence, § 21, and in the report and proceedings above cited. For instructions presumed to be prejudicial, see Fillippon v. Albion Vein Slate Co., 250 U. S. 76; Chicago, St. P., M. & O. Ry. Co. v. Kroloff, C. C. A., 217 Fed. 525; Richards v. American Bank, C. C. A., 234 Fed. 300; American Smelting & Refining Co. v. Riverside Dairy & Stock Farm, C. C. A., 236 Fed. 510; New York & Ph. Coal & Coke Co. v. Meyersdale Coal Co., C. C. A., 236 Fed. 536; American Locomotive Co. v. Harris, C. C. A., 239 Fed. 234; Dr. J. H. McLean Medicine Co. v. United States, C. C. A., 252 Fed. 694. For the admission of evidence presumed to be prejudicial, see Chicago, B. & Q. R. Co. v. Gelvin, C. C. A., 238 Fed. 14; Klein v. Darnell, C. C. A., 239 Fed. 844; Illinois Central R. R. Co. v. Norris, C. C. A., 245 Fed. 926. An erroneous ruling cannot be treated as harmless where it was such that the trial was not according to due process of law, Union Pac. R. Co. v. Syas, C. C. A., 246 Fed. 561. The certificate or evidence of the trial judge that his decision was not affected by evidence erroneously admitted, will not cure the error. U. S. v. Leles, 236 Fed. 784. 4 Fye v. U. S., C. C. A., 262 Fed. 6; Sheierson v. U. S., C. C. A., 264 Fed. 275. Supra § 536a. 5 Priest v. Las Vegas, 232 U. S. 604; Newman v. Lynchburg Investment Corporation, 236 U. S. 692; Hamilton Shoe Co. v. Wolf Brothers, 240 U. S. 251; Guerini Stone Co. v. Carlin Constr. Co., 248 U. S. 334; Dean v. Davis, C. C. A., 212 Fed. 88; Prepayment Car Sales Co. v. Orange County Traction Co., C. C. A., 214 Fed. 576; U. S. v. Norris, C. C. A., 222 Fed. 14; Bunday v. Huntington, C. C. A., 224 Fed. 847; Dowd v. United Mine Workers of America, C. C. A., 225 Fed. 1; Gideon v. Hinds, C. C. A., 238 Fed. 140; Linde Air Products Co. v. Morse Dry Dock & Repair Co., C. C. A., 246 Fed. 834; U. S. v. Porter Fuel Co., C. C. A., 247 Fed. 769; Brown v. Denver & Omnibus & Cab Co., C. C. A., 254 Fed. 560; U. S. v. Board of Com'rs of |