would have been tried at law by a court and a jury. See Johnson v. Fidelity & Casualty Co., 238 F.2d 322, 324 (8th Cir.1956) (declaratory judgment action by insurer against insureds over cov by a jury may be tried with an advisory jury, upon motion or of the district court’s own initiative, although the district court’s discretion to declare a jury advisory is not unlimited. See Merex A.G. v. Fairchild Weston Systems, Inc., 29 F.3d 821, 826-27 (2d Cir.1994) (where only claim surviving in case was not triable of right by a jury, district court did not abuse its discretion in declaring jury advisory after plaintiffs case-in-chief), cert. denied, 513 U.S. 1084, 115 S.Ct. 737, 130 L.Ed.2d 639 (1995); Bereda v. Pickering Creek Industrial Park, Inc., 865 F.2d 49, 52-53 (3d Cir.1989) (<HOLDING>). We also note that, “although Rule 39(c) does
holding that after court dismissed case at plaintiffs request notwithstanding the fact that jury had deliberated upon the case and indicated that it had reached a verdict there was no case pending in court on which a verdict could be predicated and the information which the judge got from an inspection of the petition handed to him by the foreman of the jury was information which he received as an individual and not as a judge of the court and further holding that despite violation of defendants right to receive the verdict that was purportedly reached the writing incorporated in the bill of exceptions as a verdict of the jury was in law no verdict because it was not received in court and published as required by law and was instead entirely extraneous and extrajudicial holding that district court could not decide after jury returned verdict to treat jury verdict as advisory on issue not triable of right by jury but which was tried by consent of parties to nonadvisory jury holding district court could not declare jury advisory in action triable of right by a jury and even if no right to jury trial existed in case it would be abuse of discretion to declare jury advisory after both sides rested but before jury was instructed recognizing that a trial court has the authority before accepting a verdict and before discharging a jury to send the jury back to correct a mistake in its verdict but concluding that jury had been discharged because jury was allowed to return to court on following day and was allowed to deliberate same issue it previously had decided holding district court could not declare jury advisory in action triable of right by a jury and even if the district court had discretion to do so it would be abuse of discretion to declare on the eve of trial that case would be tried as nonjury case where district court had approved parties stipulation to try case to jury