Page:Federal Reporter, 1st Series, Volume 3.djvu/519

 612 FEDERAL REPORTER. �ity of the two judges when acting in the circuit court, but as applying merely to writs issued in vacation. �It was originally the law that a quorum of the circuit court consisted of two judges. St. 1789, § 4; 1 St. 74. In 1793 power was given to one justice of the supreme court to hold the circuit court when the district judge should be absent or interested, etc. 1 St. 333. In 1S02 any judge of the cir- cuit court, being the only one in attendance, was given power to hold the court. 2 St. 156. From this statute has grown up the practice, which had become entirely settled in 1842, and is now fuUy recognized by statute, (Eev. St. § 609,) that the district judge has as full power to hold the circuit court as is possessed by any other judge of that court. But in 1807 the theory of congress probably was that the regular terms of the circuit court would be held by two justices, as, in practice, they were at that time, The meaning, then, of the statute was that a plaintif should not apply to the dis- trict judge, as such; that is, to a judge as distinguished from the court, if the court was sitting, or was about to sit, in term, so that he had opportunity to apply to what was supposed to be a full bench. Bule 56, in like manner, provides that the writ may be granted by the circuit court in term, or by either judge thereof in vacation, to last until the next term. �It must be taken to be the law still, that the district judge not acting through the court, but signing the writ himself in vacation, should not do so when the circuit court is sitting, or can be applied to, and should limit its operation to the next ensuing term. But the district judge has full power to hold the circuit court for ail purposes, including this. Such is the plain meaning of section 609, and of rule 55, of the supreme court, and such has been the practice for 40 years. When, therefore, the circuit court is held by the district judge, there is an opportunity to apply to that court, and it has full power in the premises. The reports are full of such cases ; for instance, Howe v. Underwood, 1 Pisher, 160, in which case nothing in the record or the orders shows that Judge Sprague held the court, and the writ was in the usual form. ����