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the opinion of the court, farther proceedings can be had without preju- Imprisonment, dice to the merits : and provided also, that imprisonment shall not be &c: not to be allowed, nor punishment in any case be inflicted, where the judges of the court is dithe said court are divided in opinion upon the question touching the vided. said imprisonment or punishment.

The defendants, Kelly and others, were indicted in the circuit court of Pennsylvania, for feloniously endeavouring to make a revolt on the high seas, on board of a merchant vessel of the United States. They were found guilty; and their counsel moved to arrest the judgment, on the ground, " that the act of Congress does not define the offence of making a revolt, and that it was not competent to the court to give a judicial definition of a crime heretofore unknown." The opinions of the judges of the circuit court were divided on this motion, and the same was certified to the suprenie court. United States v. Kelly et al., 11 Wheat. 417; 6 Cond. Rep. 370.

An action of general indebitatus assumpsit, was brought in the circuit court of Ohio, for work, labour and services in exploring and surveying lands, showing and selling them, investigating titles, and paying tascs, &c. The plaintiff also filed an additional bill of particulars, stating other services. The jury found a verdict for the plaintiff, "if, on points reserved, the court should be of opinion that the law is for the plaintiff; if not, for the defendant.” The opinions of the judges being opposed, the cause was removed to the supreme court, upon a certificate of disagreement upon points stated, and the special verdict. The points were, that the whole evidence and certain letters, show a subsisting and open agreement at the time of action brought; that the whole evidence constitutes a special agreement, &c.; that the plaintiff cannot recover on two items of the account, &c. The supreme court held the points imper. fectly stated, and refused to give a certificate of their opinion. Perkins v. Hart's Ex'r, 11 Wheat. 237; 6 Cond. Rep. 287.

In this case, the judges of the circuit court of West Tennessee, after a judgment rendered in the court, divided in opinion as to the amount of the surety bond to be given by the party who applied for a writ of error: whereupon the division was certified to the supreme court. The court were of opinion, that it had no jurisdiction of the question on which the opinions of the judges of the circuit court were opposed; the division of opinion having arisen after a decision of the cause, in the court below. It was certified, accordingly, to the circuit court. Devereaux v. Marr, 12 Wheat. 212; 6 Cond. Rep. 522.

In this case, an action of debt was brought in the circuit court of Rhode Island, on two bonds given, conditioned that N. H. should remain a true prisoner within the limits of the prison. The defendant pleaded a discharge from imprisonment by an act of the legislature of Rhode Island. The judges of the circuit court were opposed in opinion, as to the validity of the discharge; and the same was certified to the supreme court. Mason v. Haile, 12 Wheat. 370 ; 6 Cond. Rep. 535.

An action was instituted in the circuit court of the United States for the southern district of New York, against the drawer, upon nine several bills of exchange, and a verdict was taken for the plaintiffs, subject to the opinion of the court, on a case agreed. The judges of the circuit court being divided in opinion upon certain points, the same was certified to the supreme court. The case stated formed a part of the record sent up to the supreme court. The supreme court directed the opinion of the court to be certified on each of the points, on which the judges of the circuit court had been divided in opinion; and which were argued before it. Schimmelpennich et al. v. Bayard et al., 1 Peters, 264.

This case came before the court on a certificate of a division of opinion between the judges of the circuit court of the southern district of New York; the court having divided in opinion on a motion for execution, after a verdict against the sureties of a postmaster, for the plaintiff. The circuit court directed the questions which arose on the motion, and on which they had differed, to be certified to the supreme court. Dos et al. o. The Postmaster General, 1 Peters, 318.

An action was instituted in the circuit court of Kentucky on a promissory note, by the Bank of the United States : and the defendants filed a plea, setting forth circumstances which brought up the question of usury, in the discounting of the note. The plaintiffs demurred; and the judges of the circuit court differed in opinion on the questions raised by the pleadings: 1. Whether the facts set forth in the plea, made out a case of usury. 2. Whether, if there was usury in the case, the note is invalid, so that no recovery can be had thereon. 3. Whether, if not wholly void, a part of the note can be recovered. Bank of the United States v. Owens and others, 2 Peters, 527.

Action on a bill of exchange. A judgment was confessed on a case stated, subject to the opinion of the court, whether the court had jurisdiction of the suit. The judges differed in opinion, and the ques. tion on which they divided was certified to the supreme court. Buckner v. Finley and Van Lear, 2 Peters, 586.

A writ of right was brought in the circuit court of the southern district of New York, and the judges of the court were opposed in opinion on questions presented in the trial of the cause, on the pleadings, and on the merits. The record contained all the pleadings, and the evidence given on the trial; and the questions on which the judges were opposed were certified to the supreme court. Inglis v. The Trus. tees of the Sailor's Snug Harbor, 3 Peters, 99.

The questions on which the judges of the circuit court of North Carolina were opposed in opinion, arose in an action instituted against the defendant, to recover damages for neglecting to institute a suit against the indorser of a promissory note, until after the remedy was barred by the statute of limitations. The question certified to the supreme court, arose on the finding of the jury for the plaintiff, subject to the opinion of the court, whether the statute of limitations was not a bar to the plaintiff's action against the defendant. Wilcox et al. v. The Ex'rs of Plummer, 4 Peters, 172.

On inspecting the record, it was perceived that the judges of the circuit court of Rhode Island, instead of dividing on one or more points, had divided on the whole case, and had directed the whole case to be certified to the supreme court. Considering this as irregular, the supreme court directed the cause to be remanded to the circuit court, that further proceedings inay be had therein according to law. Saunders o. Gould, 4 Peters, 392.

A bill was filed on the equity side of the circuit court of Virginia, and the judges were opposed in opinion on questions arising in the case, as to the appropriation and distribution of the assets of the VOL. II.-21

02

North Caroli.

Sec. 7. And be it further enacted, That the district of North Carona district dia lina shall be divided into three districts, one to consist of all that part

three districts. thereof which, by the laws of the state of North Carolina, now forms the

districts of Edenton and Halifax, which district shall be called the dis

estate of a testator. These questions were certified to the supreme court. Backhouse o. Patton, 5 Peters, 160.

In an action on a bond to the United States, the judges of the circuit court of Maryland were divided in opinion as to the right of the plaintiffs to recover against the defendants as sureties for a debt due to the United States, by the Bank of Somerset. United States v. Robertson, 5 Peters, 641.

An action of debt was brought on a promissory note in the circuit court for the district of West Tennessee, and the judges of the court were opposed in opinion on questions which arose on the plaintiff's demurrers to the defendant's pleas; and also whether the averment of the citizenship of some of the parties to the suit was sufficient. A certificate of this division of opinion was, by the direction of the circuit court, made to the supreme court, according to law. Kirkman v. Hamilton, 6 Peters, 20.

The judges of the circuit court of North Carolina were opposed in opinion, on a question, whether the priority to which the United States are entitled in case of a general assignment made by a debtor, comprehends a bond for duties executed anterior to the assignment, but not payable until after the same. The question was certified to the supreme court. United States v. The State Bank of North Carolina, 6 Peters, 29.

In this case the defendant was indicted and convicted of robbing the United States' mail, and being pardoned by the President of the United States, a question arose in the circuit court of the United States, whether the defendant should plead the pardon. On this question the judges of the court were opposed in opinion, and the question was certified to the supreme court, for its decision. United States v. Wilson, 7 Peters, 150.

This case was submitted to the circuit court, on a statement of facts agreed upon by the counsel of the plaintiff, and the district attorney of the United States. The whole of the agreed facts were sent up with the record. Upon the trial and statement of facts in the cause, certain questions had occurred, on which the opinions of the judges were opposed; and the points of disagreement were certified to the supreme court for their decision. The court decided on all the questions certified, with one exception. Harris v. Elliott, 10 Peters, 25.

An action of assumpsit was commenced by the plaintiff against the collector of the port of New York, to recover a sum paid to him for duties on certain goods; the goods not being liable, under the law, to the duties charged by the collector. On the trial of the cause, the judges of the circuit court of the southern district of New York were opposed in opinion, as to the construction of the act of Con. gress, by which the duties were claimed ; and being so opposed in opinion, the question as to the construction of the law was certified to the supreme court for decision. Elliott v. Swartwout, 10 Peters, 137.

An action of detinue was instituted in the circuit court of West Tennessee, to recover a slave. During the progress of the suit, the defendant died; and his personal representative moved to dismiss the suit, on the ground that it did not survive. On this motion, the judges of the court were divided in opinion; and the same was certified, for its decision, to the supreme court. Davis v. Braden, 10 Peters, 286.

A question, whether a plaintiff in ejectinent shall be permitted to enlarge the term in the demise, is one within the discretion of the court, to which the motion for the purpose is submitted ; and it cannot be certified to the supreme court, if the judges of the circuit court are divided in opinion. Lanning's Lessce v. Vaughan et al., 10 Peters, 366.

Questions respecting the practice of the circuit court in equity cases, which depend on the sound dis. cretion of the court, in the application of the rules which regulate the course of equity proceedings, to the circumstances of such particular case; are not questions which can be certified, on a division of opinion of the circuit court. Packer v. Nixon, 10 Peters, 408.

The questions certified to the supreme court were, whether, on certain facts which were in evidence in the cause, the deed was admissible in evidence, under the acts of the legislatures of North Carolina and Tennessee; and whether certain evidence, which was given on the trial, did or did not conduce to prove that the defendants purchased under a particular person. On these questions, the judges of the circuit court of Tennessee were opposed in opinion; and the same were certitied, and answered by the supreme court. Denn, Lessee of Scott v. Reid et al., 10 Peters, 524.

An action of debt was instituted on an act of the legislature of New York, to recover certain penalties, for bringing into the state of New York certain paupers, in violation of the provisions of the act. The declaration set out the law of New York, and the breach of its provisions, by the defendant. The defendant demurred to the declaration, and the plaintiff joined in the demurrer. The judges of the circuit court of the southern district of New York were opposed in opinion on the question; whether the act of the legislature of New York, mentioned in the declaration, assumes to regulate commerce between the port of New York and foreign ports. This was certified to the supreme court. City of New York v. Milre, 11 Peters, 102.

The defendant was indicted for forging a bill of the Bank of the United States; and the judges of the circuit court of the United States for the Pennsylvania district, being opposed in opinion, whether the same was a bill of the Bank of the United States, according to the eighteenth section of the act, granting a charter to the bank; the same, with the indictment, was certified to the supreme court for its decision. United States v. Brewster, 7 Peters, 164.

The opinions of the judges of the circuit court of Pennsylvania were opposed in opinion, on a question arising on a demurrer, by the United States, to a plea of autre fois acquit, to an indictment for passing a counterfeit bank note of the Bank of the United States; and the same was certified to the supreme court. United States v. Randenbush, 8 Peters, 288.

The judges of the circuit court of Massachusetts were opposed in opinion on five points which arose on the trial, before a jury, of the cause; and they were, with all the evidence, certified to the supreme court for its decision.” Carrington et al. v. The Merchants’ Ins. Co., 8 Peters, 493.

Act of Feb.

Act of Feb.

trict of Albemarle, and a district court in and for the same shall be Names of the holden at Edenton by the district judge of North Carolina, on the third districts. Tuesday in April, on the third Tuesday in August, and on the third

ruary 4, 1807, Tuesday in December, in each and every year; one other to be called ch. 5, sec. 2.

Vol. i. p. 217, the district of Pamptico, and to consist of all that part of North Carolina

253, 518, which by the laws of the said state now forms the districts of Newbern and Hillsborough, together with all that part of the district of Wilmington which lies to the northward and eastward of New river; for which district of Pamptico, a district court shall be holden at Newbern by the district judge last aforesaid on the second Tuesday in April, on the second Tuesday in August, and on the second Tuesday in December in each and every year; and one other to consist of the remaining part of the said district of North Carolina, and to be called the district of Cape District of Cape Fear, in and for which a district court shall be holden at Wilmington Fear court to be by the district judge last aforesaid, on the first Tuesday in April, on the

mington. first Tuesday in August, and on the first Tuesday in December, in each and every year; which said district courts hereby directed to be holden shall respectively have and exercise within their several districts, the ruary 4, 1807,

ch. 5, sec. 2. same powers, authority and jurisdiction, which are vested by law in the district courts of the United States.

Sec. 8. And be it further enacted, That the circuit court and district Circuit and courts for the district of North Carolina shall appoint clerks for the said district courts courts respectively, which clerks shall reside and keep the records of the lina to appoint said courts at the places of holding the courts whereto they shall re- their clerks. spectively belong, and shall perform the same duties and be entitled to Where they

shall reside and and receive the same emoluments and fees, respectively, which are by keep their relaw established for the clerks of the circuit and district courts of the cords. United States respectively.

Their duties, Sec. 9. And be it further enacted, That all actions, causes, pleas, fees and einoluprocess and other proceedings relative to any cause, civil or criminal, Continuance which shall be returnable to, or depending in the several circuit or dis- of suits depend. trict courts of the United States on the first day of July next, shall being in other cit

. and are hereby declared to be respectively transferred, returned and the first day of continued to the several circuit and district courts constituted by this act, July, 1802. at the times herein before and herein after appointed for the holding of each of the said courts, and shall be heard, tried and determined therein in the same manner and with the same effect, as if no change had been made in the said courts. And it shall be the duty of the clerk of each and every court hereby constituted, to receive and to take into his safe take charge of

all writs, &c. keeping the writs, process, pleas, proceedings and papers of all those causes and actions which by this act shall be transferred, returned or continued to such court, and also all the records and office papers

of every kind respectively belonging to the courts abolished by the repeal of the act, intituled “An act to provide for the more convenient organization of the courts of the United States," and from which the said causes shall have been transferred as aforesaid.

Sec. 10. And be it further enacted, That all suits, process, pleadings Suits dependand other proceedings, of what nature or kind soever, depending in the ing in the circircuit court in the district of Ohio, and which shall have been, or may the district of hereafter be commenced within the territory of the United States north- Ohio, and in the west of the river Ohio, in the said court, shall, from and after the first territory of Inday of July next, be continued over, returned, and made cognizable, in tinued over. the superior court of the said territory next thereafter to be holden, and all actions, suits, process, pleadings, and other proceedings as aforesaid depending in the circuit court of the said district, and which shall have been or may hereafter be commenced within the Indiana territory in Ti 624. said court, shall, from and after the first day of July next, be continued over, returned and made cognizable in the superior court of the said Indiana territory, next thereafter to be holden.

The clerks to tain cases.

diana to be con. its.

Cognizance of

Sec. 11. And be it further enacted, That in all cases in which proproceedings un. der commis.

ceedings shall, on the said first day of July next, be pending under a sions of bank. commission of bankruptcy issued in pursuance of the aforesaid act, inruptcy in cer- tituled “ An act to provide for the more convenient organization of the Act of Feb.

courts of the United States,” the cognizance of the same shall be, and ruary 13, 1801, hereby is transferred to, and vested in, the district judge of the district ch. 4.

within which such commission shall have issued, who is hereby empowered to proceed therein in the same manner and to the same effect, as

if such commission of bankruptcy had been issued by his order. Salaries of the district judges

Sec. 12. And be it further enacted, That from and after the first of Kentucky and day of July next, the district judges of Kentucky and Tennessee shall be Tennessee. and hereby are severally entitled to a salary of fifteen hundred dollars,

Vol. i. p. 496. annually, to be paid quarter-yearly at the treasury of the United States.

Act of Septeinber 24,1789,

Sec. 13. And be it further enacted, That the marshals and attornies ch. 20. Act of of the United States, for the districts which were not divided, or within January 31, the limits of which, new districts were not erected, by the act intituled 1797, ch. 2. Certain mar

"An act to provide for the more convenient organization of the courts shals and attor of the United States,” passed the thirteenth day of February, one thounies may be sand eight hundred and one, shall continue to be marshals and attornies continued.

Act of Feb. for such districts respectively, unless removed by the President of the ruary 13, 1801, United States, and in all other districts which were divided or within ch.4.

the limits of which new districts were erected by the last recited act, President to discontinue

the President of the United States be and hereby is empowered from others.

and after the first day of July next to discontinue all such supernumerary marshals and district attornies of the United States in such districts respectively as he shall deem expedient, so that there shall be but one marshal and district attorney to each district; and every marshal and

district attorney who shall be continued in office, or appointed by the Act of Feb- President of the United States in such districts, shall have and exercise ruary 13, 1801, the same powers, perform the same duties, give the same bond with ch. 4.

sureties, take the same oath, be subject to the same penalties and reguMarshal's pow. lations as are, or may be prescribed by law, in respect to the marshals

and district attornies of the United States. And every marshal and Marshals and attornies dis.

district attorney who shall be so discontinued as aforesaid shall be holden continued, to to deliver over all papers, matters and things in relation to their respecdeliver

tive offices, to such marshals and district attornies respectively who shall be so continued or appointed as aforesaid in such district, in the same manner as is required by law in cases of resignation or removal from

office. General com

Sec. 14. And be it further enacted, That there shall be appointed by missioners of bankruptcy.

the President of the United States, from time to time, as many general Proceedings commissioners of bankruptcy, in each district of the United States, as upon a petition he may deem necessary: and upon petition to the judge of a district sion of bank- court for a commission of bankruptcy he shall proceed as is provided in ruptcy. and by an act, intituled “An act to establish an uniform system of bank4, 1800, ch. 19. ruptcy throughout the United States,” and appoint, not exceeding three

of the said general commissioners as commissioners of the particular Allowance to bankrupt petitioned against ; and the said commissioners, together with the commission- the clerk, 'shall each be allowed as a full compensation for their services, ers and clerk.

To be appor- when sitting and acting under their commissions, at the rate of six doltioned out of the lars per day for every day which they may be employed in the same bankrupt’s pro- business, to be apportioned among the several causes on which they

Who may be, may act on the same day, and to be paid out of the respective bankrupt's or are commis- estates : Provided, that the commissioners, who may have been, or may sioners already be appointed in any district before notice shall be given of the appointappointed. In certain

ment of commissioners for such district by the President in pursuance cases to finish of this act, and who shall not then have completed their business, shall the business of their appoint

be authorized to proceed and finish the same, upon the terms of their original appointment.

ers and duties,

over

papers, &c.

sec, 2.

Act of Feb

ments.

Sec. 15. And be it further enacted, That the stated session of the District court district court, for the district of Virginia, heretofore directed to be of Virginia to be

held at Norfolk. holden in the city of Williamsburg shall be holden in the town of Norfolk from and after the first day of July next, and the stated sessions of the district court for the district of Maryland, shall hereafter be holden in For Maryland, the city of Baltimore only, and in the district of Georgia, the stated at Baltimore.

For Georgia, at sessions of the district court shall be held in the city of Savannah only.

Savannah. Sec. 16. And be it further enacted, That for the better establish- State of Ten. ment of the courts of the United States within the state of Tennessee, nessee divided

into two disthe said state shall be divided in two districts, one to consist of that part tricts. of said state, which lies on the east side of Cumberland mountain, and to be called the district of East Tennessee, the other to consist of the remaining part of said state, and to be called the district of West Tennessee.

Sec. 17. And be it further enacted, That the district judge of the District judge United States, who shall hereafter perform the duties of district judge, hold four annual within the state of Tennessee, shall annually hold four sessions, two at sessions. Knoxville, on the fourth Monday of April, and the fourth Monday of Where. October, in and for the district of East Tennessee, and two at Nashville,

ruary 24, 1807, on the fourth Monday of May, and the fourth Monday of November, in ch. 16, sec. 4. and for the district of West Tennessee.

Sec. 19. And be it further enacted, That there shall be a clerk for Clerks to be each of the said districts of East and West Tennessee, to be appointed appointed for by the judge thereof, who shall reside and keep the records of the said Tennessee. courts, at the places of holding the courts, whereto they respectively Where to reshall belong, and shall perform the same duties, and be entitled to, and side—their du. receive the same emoluments and fees, which are established by law for ties and emoluthe clerks of the district courts of the United States, respectively.

Sec. 19. And be it further enacted, That there shall be appointed, Marshals for in and for each of the districts of East and West Tennessee, a marshal, East and West whose duty it shall be to attend the district courts hereby established, their powers, and who shall have and exercise within such district, the same powers, duties,

emoluments. perform the same duties, be subject to the same penalties, give the same

Act of Feh. bond with sureties, take the same oath, be entitled to the same allow

ruary 28, 1799, ance, as a full compensation for all extra services, as hath heretofore ch. 19, sec. 4. been allowed to the marshal of the district of Tennessee, by a law, passed the twenty-eighth day of February, one thousand seven hundred and ninety-nine, and shall receive the same compensation and emoluments, and in all respects be subject to the same regulations as are now prescribed by law, in respect to the marshals of the United States, heretofore appointed: Provided, that the marshals of the districts of East

The present

marshals to con. and West Tennessee, now in office, shall, during the periods for which tinue in office. they have been appointed, unless sooner removed by the President of unless removed the United States, be and continue marshals for the several districts by the Presi

dent. hereby established, within which they respectively reside.

Sec. 20. And be it further enacted, That there shall be appointed for Attornies for each of the districts of East and West Tennessee, a person learned in the East and West law, to act as attorney for the United States within such district; which

Their duties attorney shall take an oath or affirmation for the faithful performance and emoluof the duties of his office, and shall prosecute in such district, all delin- ments. quencies, for crimes and offences, cognizable under the authority of the United States, and all civil actions or suits, in which the United States shall be concerned; and shall be entitled to the same allowance, as a full compensation for all extra services, as hath heretofore been allowed to attornies of the district of Tennessee, by a law passed the twenty-eighth day of February, one thousand seven hundred and ninetynine, and shall receive such compensation, emoluments and fees, as by law are or shall be allowed to the district attornies of the United States, respectively: Provided, that the district attornies of East and West

and

.

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