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Sec. 2. And be it further enacted, That it shall be the duty of the War to receive claims to lands,
Secretary of War to receive claims to lands for military services, and and for dupli- claims for duplicates of warrants issued from his office, or from the land
war, office of Virginia, or of plats and certificates of surveys founded on such rants, suggested have been
warrants, suggested to have been lost or destroyed, until the first day of lost.
January next, and no longer; and immediately thereafter, to report the To report the same to Congress, designating the numbers of claims of each descripgress, with his tion, with his opinion thereon. opinion.
APPROVED, April 26, 1802. STATUTE I. April 29, 1802. CHAP. XXXI.- An Act to amend the Judicial System of the United Stales.(a)
Supreme court Be it enacted by the Senate and House of Representatives of the to be holden at United States of America in Congress assembled, That from and after Washington, by
jus. the passing of this act, the Supreme Court of the United States shall be
holden by the justices thereof, or any four of them, at the city of WashSessions
ington, and shall have one session in each and every year, to commence the first Monday on the first Monday of February annually, and that if four of the said of February an. justices shall not attend within ten days after the time hereby appointed nually. Business to be
for the commencement of the said session, the business of the said court continued over shall be continued over till the next stated session thereof.(6) Provided if a quorum does always, that any one or more of the said justices attending as aforesaid
. One of the jus.
shall have power to make all necessary orders touching any suit, action, tices may make writ of error, process, pleadings or proceedings, returned to the said rules, &c.
court or depending therein, preparatory to the hearing, trial or decision Part of act of of such action, suit, appeal, writ of error, process, pleadings or proceed. 1759, ch. 20, ings. And so much of the act, intituled "An act to establish the judicial providing for a courts of the United States,” passed the twenty-fourth day of September, Supreme Court seventeen hundred and eighty-nine, as provides for the holding a session in August, re. of the supreme court of the United States on the first Monday of August, pealed. annually, is hereby repealed.
Associate justice living in the
Sec. 2. And be it further enacted, That it shall be the duty of the fourth circuit, to associate justice resident in the fourth circuit formed by this act, to
the attend at the city of Washington on the first Monday of August next, city of Wash. ington.
and on the first Monday of August each and every year thereafter, who When. shall have power to make all necessary orders touching any suit, action, For what pur- appeal, writ of error, process, pleadings or proceedings, returned to the pose.
said court or depending therein, preparatory to the hearing, trial or
decision of such action, suit, appeal, writ of error, process, pleadings or 1839, ch. 35. proceedings :(c) and that all writs and process may be returnable to the
said court on the said first Monday in August, in the same manner as to the session of the said court, herein before directed to be holden on the first Monday in February, and may also bear teste on the said first Mon
day in August, as though a session of the said court was holden on that To be attend. day, and it shall be the duty of the clerk of the supreme court to attend cd also by the the said justice on the said first Monday of August, in each and every clerk.
year, who shall make due entry of all such matters and things as shall or may be ordered as aforesaid by the said justice, and at each and every such August session, all actions, pleas, and other proceedings relative to any cause, civil or criminal, shall be continued over to the ensuing
February session. (a) See notes to the act to establish the judicial courts of the United States, September 24, 1789, chap. 20, page 73. An act in addition to an act to amend the judicial system of the United States, March 3, 1803, chap. 40.
(b) Act of March 3, 1837, chap. 32; an act supplementary to an act to amend the judicial system of the United States,
By the act of May 4, 1826, chap. 37, the sessions of the supreme court were directed to commence on the first Monday in January annually: and by the act of June 17, 1844, the sessions are to commence on the first Monday of December annually.
(C) By the 7th section of the act of February 28, 1839, chap. 38, the provision which required the attendance of a justice of the supreme court at Washington on the first Monday in August, was repealed
Sec. 3. And be it further enacted, That all actions, suits, process, pleadings and other proceedings, of what nature or kind soever, civil or ceedings made
returnable to criminal, which were continued from the supreme court of the United
August session. States, which was begun and holden on the first Monday of December last, to the next court to have been holden on the first Monday of June, under the act which passed on the thirteenth day of February, one thou- Act of Feb. sand eight hundred and one, intituled, “An act to provide for the more ruary 13, 1801,
ch. 4. convenient organization of the courts of the United States," and all writs, process and proceedings, as aforesaid, which are or may be made returnable to the same June session, shall be continued, returned to, and have day, in the session to be holden by this act, on the first Monday of August next; and such proceedings shall be had thereon, as is herein before provided.
Sec. 4. And be it further enacted, That the districts of the United Districts form. States (excepting the districts of Maine, Kentucky, and Tennessee) shall ed into circuits. be formed into six circuits, in manner following:
ed. The districts of New Hampshire, Massachusetts and Rhode Island, First circuit. shall constitute the first circuit;
The districts of Connecticut, New York and Vermont, shall constitute Second circuit. the second circuit;
The districts of New Jersey and Pennsylvania shall constitute the Third circuit. third circuit;
The districts of Maryland and Delaware shall constitute the fourth Fourth circuit. circuit;
The districts of Virginia and North Carolina shall constitute the fifth Fifth circuit. circuit; and
The districts of South Carolina and Georgia shall constitute the sixth Sixth circuit. circuit.(a)
And there shall be holden annually in each district of the said circuits, Two circuit two courts, which shall be called circuit courts. In the first circuit, the courts to be held
in each district. said circuit court shall consist of the justice of the supreme court re- Altered by act siding within the said circuit, and the district judge of the district where of June 17,1844. such court shall be holden: and the sessions of the said court, in the
of whom the district of New Hampshire, shall commence on the nineteenth day of court is to con May, and the second day of November, annually; in the district of sist, and Massachusetts, on the first day of June, and the twentieth day of Octo- time of its ses
sion. ber, annually; in the district of Rhode Island, on the fifteenth day of June, and the fifteenth day of November, annually.
1812, ch. 45. In the second circuit, the said circuit court shall consist of the senior Second circnit associate justice of the supreme court residing within the fifth circuit, court, its seso and the district judge of the district, where such court shall be holden: be held. and the sessions of the said court in the district of Connecticut, shall Act of March commence on the thirteenth day of April, and the seventeenth day of 3, 1803, Ch. 40. September, annually; in the district of New York, on the first day of 1808, ch. 29, April, and the first day of September, annually; in the district of Ver- sec. 1. mont, on the first day of May, and the third day of October, annually.
(a) The acts of Congress which regulate the original jurisdiction of the circuit courts, are: An act to establish the judicial courts of the United States, September 24, 1789, chap. 20; an act in addition to an act to prohibit the carrying on the slave trade from the United States to any foreign place or country, May 10, 1800, sec. 4; an act to vest more effectually in the state courts, and in the district courts of the United States, jurisdiction in the cases therein mentioned, March 3, 1815. Turner v. The Bank of North America, 4 Dall. 8; 1 Cond. Rep. 205.
The inferior courts of the United States, are all of limited jurisdiction, but they are not on that ac. count inferior courts, in the technical sense of those words, whose judgments taken alone, are to be disregarded. If the jurisdiction be not alleged in the proceedings, they are erroneous, but they are not nullities. M'Cormick et al. v. Sullivant et al., 10 Wheat. 192; 6 Cond. Rep. 71.
The justices of the supreme court have by practice and acquiescence under it, for a period of several years, commencing with the organization of the judicial system, sat as circuit judges: this practical exposition is too strong to be shaken or controlled.' Stuart v. Laird, 1 Cranch, 299; 1 Cond. Rep. 316.
The circuit court has jurisdiction on a bill in equity, filed by the United States, against the debtor of their debtor, they claiming a priority under the fifty-fifth section of the act of March 2, 1799, notwithstanding the local law of the state allows a creditor to proceed against the debtor of his debtor by a peculiar process. The United States v. Howland et al., 4 Wheat. 108; 4 Cond. Rep. 404.
Third circuit In the third circuit, the said circuit court shall consist of the justice court, its sions.
ses- of the supreme court residing within the said circuit, and the district
judge of ihe district where such court shall be holden: and the sessions
of the said court, in the district of New Jersey, shall commence on the Act of March first day of April
, and the first day of October, annually; in the district 3, 1803, ch. 32. of Pennsylvania, on the eleventh day of April, and the eleventh day of
judge of the district where such court shall be holden: and the sessions
November, annually; to be holden hereafter at the city of Baltimore only. Fifth circuit In the fifth circuit, the circuit court shall consist of the present chief court, its ses. justice of the supreme court, and the district judge of the district where sions.
such court shall be holden: and the sessions of the said court, in the dis
trict of Virginia, shall commence on the twenty-second day of May, and Act of Feh. the twenty-second day of November, annually; in the district of North ruary 4, 1807, Carolina, on the fifteenth day of June, and the twenty-ninth day of ch. 5.
December, annually. Sixth circuit In the sixth circuit, the said circuit court shall consist of the junior court, its ses- associate justice of the supreme court, in the fifth circuit, and the dis
trict judge of the district where such court shall be holden: and the 1807, ch. 16. sessions of the said court, in the district of South Carolina, shall comAt Charleston. mence at Charleston on the twentieth day of May, and at Columbia on Columbia. the thirtieth day of November, annually; in the district of Georgia, on Savannah. the sixth day of May at Savannah, and on the fourteenth day of DecemLouisville. ber hereafter at Louisville, annually: Provided, that when only one of Provisions if the judges hereby directed to hold the circuit courts, shall attend, such the judges do circuit court may be held by the judge so attending; and that when One judge may any of the said days shall happen on a Sunday, then the said court adjourn the hereby directed to be holden on such day, shall be holden on the next
day thereafter; and the circuit courts constituted by this act, shall be
held at the same place or places in each district of every circuit, as by 1808, ch. 29. law they were respectively required to be held previous to the thirteenth
day of February, one thousand eight hundred and one, excepting as is
herein before directed. And none of the said courts shall be holden Clerks of dis. until after the first day of July next, and the clerk of each district court trict to be clerks shall be also clerk of the circuit court in such district, except as is herein of circuit courts.
after excepted. ception,
Sec. 5. And be it further enacted, That on every appointment which Justices of the shall be hereafter made of a chief justice or associate justice, the said to allot them. chief justice and associate justices shall allot themselves among the elves among
aforesaid circuits as they shall think fit, and shall enter such allotment the circuits. Allotment to
on record. And in case no such allotment shall be made by them at
their session next succeeding such appointment, and also, after the aprecord.
pointment of any judge, as aforesaid, and before any allotment shall have If they fail to been made, it shall and may be lawful for the President of the United dent may make States to make such allotment as he shall deem proper, which allotment the allotment. made in either case, shall be binding until another allotment shall be
Allotment to he binding until
made; and the circuit courts constituted by this act, shall have all another is made. the power, authority and jurisdiction within the several districts of their
Powers of the respective circuits that before the thirteenth day of February, one thoucircuit courts. In writs of error
sand eight hundred and one, belonged to the circuit courts of the United and appeal, the States, and in all cases which, by appeal or writ of error, are or shall be opinion of the removed from a district to a circuit court, judgment shall be rendered in justice of the
conformity to the opinion of the judge of the supreme court presiding in supreme court to prevail.
such circuit court.
With an ex
he entered on
Sec. 6. And be it further enacted, That whenever any question shall occur before a circuit court, upon which the opinions of the judges shall disagreement in be opposed, the point upon which the disagreement shall happen, shall, judges of the during the same term, upon the request of either party, or their counsel, circuit court, be stated under the direction of the judges, and certified under the seal that of the suof the court, to the supreme court, at their next session to be held there- upon the point after; and shall, by the said court, be finally decided. (a) And the decision stated to be con
clusive. (a) 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 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.
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 certi. fed; 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 citi. zens and residents in 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 jurisdic. tion, 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 moncy 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
Decision of the of the supreme court, and their order in the premises, shall be remitted supreme to be to the circuit court, and be there entered of record, and shall have effect remitted to the circuit court and
according to the nature of the said judgment and order : Provided, that to be of effect. nothing herein contained shall prevent the cause from proceeding, if, in whether a writ of habere facias possessionem should be issued; the defendant, in the circuit court of Maryland, having obtained, in a state court, an order for the injunction of the proceedings in the circuit
The supreme court directed that the writ be issued. M‘Kim v. Voorhies, 7 Cranch, 279; 2 Cond. Rep. 492.
The defendant was indicted in the circuit court of Vermont, under embargo laws, for loading carriages with pearl ashes, with intent to export them. The jury found him guilty; and that the ashes were worth two hundred and eighty dollars. The defendant moved in arrest of judgment, for defect in the finding ; and on the question presented by the motion, the judges were divided in opinion ; which division was certified to the supreme court. United States v. John Tyler, 7 Cranch, 285; 2 Cond. Rep. 492.
The question certified to the supreme court, from the circuit court of West Tennessee, was on the construction of the act of the legislature of Tennessee, relative to possession of lands. Patton's Lessee v. Easton, 1 Wheat. 476; 3 Cond. Rep. 631.
The supreme court of the United States has no jurisdiction of causes brought before it, on a certificate of division of opinion of the judges of the circuit court, for the District of Columbia. The appellate jurisdiction extends, only, to the final judgment and decrees of that court. Ross v. Triplett, 3 Wheat. 600 ; 4 Cond. Rep. 351.
The question referred to the supreme court, by a certificate of division between the judges of the cir. cuit court, on facts stated by the court, was, whether the circuit court of Kentucky could take jurisdiction of a case, when one of the grants for the land in controversy was issued out by the state of Virginia, the other by the state of Kentucky, both grants being founded upon warrants and locations made under the laws of Virginia. Colson v. Lewis, 2 Wheat. 377; 4 Cond. Rep. 169.
The facts of the case being found by a special verdict, and the judges being divided in opinion on questions arising on the verdict, the questions were certified to the supreme court. Somerville's Ex’rs v. Hamilton, 4 Wheat. 230; 4 Cond. Rep. 436.
The difference of opinion of the judges of the circuit court of Delaware, was, whether certain depo. sitions taken under a commission issued from the circuit court of Delaware, could be read in evidence. This difference was certified to the supreme court, and the question decided. Sergeant's Lessee v. Biddle et al., 4 Wheat. 508; 4 Cond. Rep. 522.
On an indictment for manslaughter, the defendant was found guilty, subject to the opinion of the court, whether the circuit court of Pennsylvania had jurisdiction in a case where the offence was committed on board an American ship, lying in the river Tigris, off Wampoa, in the empire of China. On the question of jurisdiction, the judges were divided in opinion, and the division was certified to the supreme court; and was decided in favour of the defendant. United States v. Wiltberger, 5 Wheat. 76 ; 4 Cond. Rep. 593.
The jury found a special verdict, in the circuit court of Virginia, on a trial of an indictment for piracy; and on a motion to arrest the judgment, the question whether the acts charged against the de. fondant, and found by the jury, was a piracy by the law of nations, so as to be punishable under the act of Congress of 3d March, 1819, was presented; and the judges of the circuit court were divided in opinion; and thereupon, the question was certified to the supreme court. United States v. Smith, 5 Wheat. 153; 4 Cond. Rep. 619.
The prisoners were found guilty in the circuit court of Massachusetts, for murder on the high scas, out of the jurisdiction of a particular state. The counsel of the prisoners moved the court for a new trial for the misdirection of the court on points of law which arose during the trial. The judges of the court being opposed in opinion upon questions presented with the motion; the indictment, and a statement of the evidence, were certified to the supreme court. United States v. Holmes et al., 5 Wheat. 412; 4 Cond. Rep. 708.
The defendant was indicted in the circuit court of South Carolina, charging him with wickedly and maliciously concealing a murder committed on the high seas, of which he had knowledge. The judge charged the jury, that the concealment, under the circumstances, was sufficient to convict the defendant, and the jury found him guilty. On a motion to arrest the judgment, and for a new trial, the judges were opposed in opinion on the motion, which was certified to ihe supreme court. The supreme court said, a motion for a new trial is not a part of the proceedings of the case. The question must be one which arises in a cause depending before the court, relative to a proceeding belonging to the cause. A motion for a new trial has never before been brought to this court on a division of opinion in the circuit court. United States v. Daniel, 6 Wheat. 542 ; 5 Cond. Rep. 170.
On a trial of a writ of right in the circuit court of Kentucky, the judges of the court differed in opin. ion on questions as to the constitutionality of certain laws of Kentucky, giving to occupying claimants of land, the value of their improvements.' The questions were certified to the supreme court. Green v. Biddle, 8 Wheat. 1; 5 Cond. Rep. 369.
The question certified from the circuit court of Maryland, in this case, was on a motion to instruct the jury, that, on the whole evidence, the plaintiffs cannot sustain their demand. All the evidence given on ihe trial of the cause was before the supreme court. The supreme court certified their opinion to the circuit court. Willinks v. Hollingsworth, 6 Wheat. 240 ; 5 Cond. Rep. 79.
This was a case certified from the circuit court of New Jersey. The question on which the court was divided was, whether on the special pleadings and demurrer, an alteration in the bond of a collector of taxes, made without the knowledge of his surety, by which the collector was appointed for nine instead of eight townships, discharged the surety from liability for taxes collected after the alteration was made. Miller v. Stewari, 9 Wheat. 680; 5 Cond. Rep. 727.
This cause was certified from the circuit court of the district of Kentucky, upon a division of opinion between the judges of that court, on several questions which occurred, on a motion made by the plaintiff, to quash the marshal's return on an execution issued on a judgment obtained in that court on a replevin bond; and also to quash the replevin bond taken on the execution, for the causes assigned in the motion. The court divided in opinion on the points stated in the motion, and the same were certified to the supreme court. Wayman et al. v. Southard, 10 Whent. 1; 6 Cond. Rep. 1.