Page:United States Statutes at Large Volume 2.djvu/195



. And be it further enacted, That whenever any question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party, or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the supreme court, at their next session to be held thereafter; and shall, by the said court, be finally decided. The decisions of the Supreme Court of the United States, upon the provisions of this section, are:

The law which empowers the supreme court to take cognizance of questions adjourned from a circuit court, gives a jurisdiction over the single point on which the judges were divided; not over the whole cause. Wayman et al. v. Southard et al., 10 Wheat. 1; 6 Cond. Rep. 1.Where the court is equally divided, the decree of the court below is of course affirmed, so far as the point of division goes. The Antelope, 10 Wheat. 66; 6 Cond. Rep. 30.The supreme court has no jurisdiction in a case in which the judges of the circuit court have divided in opinion upon a motion for a rule to show cause why the taxation of the costs of the marshal on an execution should not be reversed and corrected. Bank of the United States v. Green and others, 6 Peters, 26.Where the court is equally divided in opinion upon a writ of error the judgment of the inferior court is affirmed. Etting v. The Bank of the United States, 11 Wheat. 59; 6 Cond. Rep. 216.Where a case is certified to the supreme court upon a division of opinion of the judges of the circuit court, and the points upon which they were so divided, are too imperfectly stated to enable the supreme court to pronounce any opinion upon them, it will neither award a venire facias de novo, nor certify any opinion to the court below, but will merely certify that they are too imperfectly stated. Perkins v. Hart’s Ex’rs, &c., 11 Wheat. 237; 6 Cond. Rep. 287.It appeared on a certificate from the circuit court of the United States of Pennsylvania, that the judges of the court were divided on a motion in arrest of judgment. Held, that judgment must be given on the verdict. United States v. Worrall, 2 Dall. 338.384 [sic]Where a case is certified from a circuit court of the United States, the judges of the circuit court having differed in opinion upon questions of law which arose on the trial of the cause; the supreme court cannot be called upon to express an opinion on the whole facts of the case, instead of upon particular points of law, growing out of the same. Adams, Cunningham & Co. v. Jones, 12 Peters, 207.The intention of Congress, in passing the act authorizing a division of opinion of the judges of the circuit courts of the United States to be certified to the supreme court was, that a division of the judges of the circuit court, upon a single and material point, in the progress of the cause, should be certified to the supreme court for its opinion; and not the whole cause. When a certificate of division brings up the whole cause, it would be, if the court should decide it, in effect, the exercise of original, rather than appellate jurisdiction. White v. Turk et al., 12 Peters, 238.This case came up to the supreme court, from the circuit court, upon a division of opinion between the judges of the court. It was decided by the supreme court, that the question certified would, alone, be considered; each party being left to bring up the whole case from the circuit court, by a writ of error. Ogle v. Lee, 2 Cranch, 33.The question certified from the circuit court of North Carolina, was, “whether the act of assembly, (of North Carolina,) entitled, an act concerning proving wills, and to prevent frauds in the management of intestates’ estates, passed in 1715, recited in the plea of the defendants, was, under all the circumstances stated, and the various acts passed by the legislature of North Carolina, a bar to this action.” The certificate stated, that the 9th section of the act had been pleaded by the defendant, in bar to the action. The certificate of the division was granted on the motion of the plaintiff, by his counsel; and at his request, a statement of the facts, “made under the direction of the judges,” was certified. The certificate, thus made out, set forth all the laws of North Carolina, which operated on the question certified; and stated the questions which arose in the cause, on which the opinions of the judges were divided. The court decided in favour of the plaintiff. Ogden, Adm’r of Cornell v. Blackledge, Ex’r of Sater, 2 Cranch, 272; 1 Cond. Rep. 411.The certificate of division of opinion by the judges of the circuit court of Virginia, stated, “In this cause it occurred as a question, whether Hepburn and Dundas, the plaintiffs in this cause, who are citizens and residents of the District of Columbia; and are so stated in the pleadings; can maintain an action in the supreme court against the defendant, who is a citizen and inhabitant of the district and the commonwealth of Virginia, and is also stated so to be in the pleadings: or whether, for want of jurisdiction, the said suit ought to be dismissed.” It was certified that the circuit court had no jurisdiction in the case. Hepburn and Dundas v. Ellzey, 2 Cranch, 445; 1 Cond. Rep. 444.This case was certified from the circuit court of Pennsylvania, the judges being divided in opinion upon the question, “whether, in the state of the pleadings, the judgment ought to be rendered for the plaintiffs.” The supreme court said—Judgment, therefore, on the pleadings, must be rendered for the plaintiffs. Mr. Chief Justice Marshall, who delivered the opinion of the court, said: “By the twenty-sixth section of the judicial act, it is directed that, in cases of this description, the court shall render judgment for so much as is due according to equity. And when the sum for which judgment is to be rendered is uncertain, the same shall, if either of the parties request it, be assessed by a jury. In this case, it is the opinion of a majority of the court, that the judgment ought to be rendered for so much as remains due of the sum of one hundred and seventy thousand guilders, calculating interest thereon from the 1st of March, 1803; and if either of the parties request it, that a jury be empannelled to ascertain the value of this sum in money of the United States.” United States v. Gurney and others, 4 Cranch, 333; 2 Cond. Rep. 132.This case was certified on division of opinion of the judges of the circuit court, on a motion in arrest of judgment, the question being, whether the assignee of a part of a patent right, cannot maintain an action on the case, for a violation of the patent right. 6 Cranch, 324.In this case, the question certified, on which the judges of the circuit were divided in opinion, was And the decision