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view of the judgments and decrees entered upon such findings by the Supreme Court, upon appeal, shall be limited to a determination of the questions of law arising upon the record, and to such rulings of the circuit court, excepted to at the time, as may be presented by a bill of exceptions) prepared as in actions at law. (18 U. S. Stats. 315; 1 Sup. Rev. Stats. 135.) The only questions that can be presented for review on a bill of exceptions are those made upon questions of law. (Wiscart v. Dauchy, 3 Dall. 321; The Abbotsford, 98 U. S. 440. Only such rulings can be put into it as can properly be put into a bill of exceptions on a trial at law. (The Abbotsford, 98 U. S. 440.) Where the amount is not sufficient to permit a review, a general finding is sufficient. (Vitrified Pipes, 14 Blatchf. 274.) The record received from the district court, including the testimony, must be incorporated in the record for the Supreme Court. (The Alice Painter, 14 Blatchf. 224.) The finding of the circuit court on a question of fact is not reviewable on appeal. (United States v. Dawson, 101 U. S. 569.)

§ 693. Review of decisions of circuit court on certificate of division of opinion.-Any final judgment or decree, in any civil suit or proceeding before a circuit court which was held, at the time, by a circuit justice and a circuit judge or a district judge, or by the circuit judge and a district judge, wherein the said judges certify, as provided by law, that their opinions were opposed upon any question which occurred on the trial or hearing of the said suit or proceeding, may be reviewed and affirmed, or reversed or modified by the Supreme Court, on writ of error or appeal, according to the nature of the case, and subject to the provisions of law applicable to other writs of error or appeals in regard to bail and supersedeas. (See sec. 652.)

Allowance of certificate.-A division of opinion between the associate justice and the circuit judge may be certified up (Insurance Co. v. Dunham, 11 Wall. 1; Town of Wayanwega v. Ayling, 99 U. S. 112); so a division of opinion arising on a special verdict may be certified (Symerville v. Hamilton, 4 Wheat. 230); so an application for a writ of habeas corpus and questions arising thereon may be certified. (Ex parte Milligan, 4 Wall. 2.) The cases which may be taken up on certificate of division are only such as where the difference of opinion is on a point of law (Wilson v. Barnum, 8 How. 258; Silliman v. Bridge Co., 1 Black, 528; Brobst v. Brobst, 4 Wall. 2); and if there is no evidence to sustain plaintiff's case, a difference of opinion as to granting an instruction cannot be certified up. (Daniels v. Railroad Co., 3 Wall. 250.) A certificate cannot be granted unless two judges were present at the trial (Taylor v. Carpenter, 2 Wood. & M. 1); and when the cause came up on writ of error to the district court, it cannot be certified up on a division between the circuit and district judges. (U. S. v. Lancaster, 5 Wheat. 434; Nelson v. Carland, 1 How. 265; Ex parte Castleman, 1 How. 281; Collins v. Blyth, 1 How. 282.)

Personal rights.-Right to freedom. (Chouteau v. Marguerite, 12 Peters, 507; Strader v. Graham, 10 How. 82.) To writ of habeas corpus. (Holmes v. Jennison, 14 Peters, 540.) To religious liberty. (Permoli v. First Municipality, 3 How. 589.)

Discretion.-A question to be certified must be open to revision on a writ of error or appeal. (Wiggins v. Gray, 24 How. 203.) A certificate cannot be taken on a question arising on a motion for a new trial. (Taylor v. Carpenter, 2 Wood. & M. 1; Jones v. Van Zandt, 5 How. 215; Lanning v. London, 4 Wash. C. C. 332; Grant v. Raymond, 6 Peters, 218.) A division upon a question resting in discretion cannot be severed. (Davis v. Braden, 10 Peters, 286.) So as to granting or refusing a motion to revive a suit (Davis v. Braden, 10 Peters, 286); or questions respecting practice in equity cases (Packer v. Nixon, 10 Peters, 408; Wiggins v. Gray, 24 How. 303); or whether a party must proceed by motion or by a formal bill (Wiggins v.

Gray, 24 How. 303); or whether a party may be permitted to enlarge the term on scire facias. (Smith v. Vaughan, 10 Peters, 366.) This section is broad enough to cover any material question of right. (U.S. v. Chicago, 7 How. 185.) A division upon a question arising after entry of judgment cannot be certified (Devereaux v. Marr, 12 Wheat. 212), as to the amount of the bond on a writ of error (Devereaux v. Marr, 12 Wheat. 212), or upon the right of the marshal to tax poundage. (Bank v. Green, 6 Peters, 26.) This section contemplates a suit only when both parties have appeared. (Wiggins v. Gray, 24 How. 303.) A point arising on a motion for a preliminary injunction may be certified. (U.S. v. Chicago, 7 How. 185) A cause transferred from the district to the circuit court before the entry of judgment cannot be taken up under this section. (U. S. v. Stone, 14 Peters, 524.) A case cannot be certified up from the supreme court of the District of Columbia under this section. (Ross v. Triplett, 3 Wheat. 600.) A case may be taken up cn a certificate of division, without reference to the amount in controversy. (Dow v. Johnson, 100 U.S.158.) If the judges in an equity suit agree on some questions, appeal may be taken from the decree and a certificate of division on the questions on which they disagree. (Brobst v. Brobst, 2 Wall. 95.) If the plaintiff discontinues cause after the question is certified, he may dismiss the certified cause in the circuit court. (Veazie v. Wadleigh, 11 Peters, 55.) If the question certified arises on a special verdict, the case may be dismissed if the verdict is defective. (U. Š. v. Buzzo, 18 Wall. 125.) If the point was not certified, the Supreme Court cannot inquire whether the parties were properly before the circuit court. (Wayman v. Southard, 10 Wheat. 1.) If the record does not disclose facts as to the question, it is an abstract proposition and no answer will be given. (Havemeyer v. Iowa, 3 Wall. 294) If it appears on the whole record that disagreement did not actually exist, the question will not be considered. (Railroad Co. v. White, 101 U. S. 98.) A bill of exceptions is only necessary to engraft upon the record such rulings excepted to as otherwise would not be a part of it. (Nickerson v. Steamship Co., 4 Morr. Trans. 360.)

§ 694. Cases pending in Supreme Court from middle and northern districts of Alabama.-Nothing in the act of March 3, 1873, relating to the circuit and district courts for the middle and northern districts of Alabama shall affect the jurisdiction of the Supreme Court to hear and determine any cause or proceeding pending in said court at the date of said act on writ of error or appeal from the district courts of either of said districts.

§ 697. Points certified on division of opinion in a circuit court.--When any question occurs on the hearing or trial of any criminal proceeding before a circuit court upon which the judges are divided in opinion, and the point upon which they disagree is certified to the Supreme Court according to law, such point shall be finally decided by the Supreme Court; and its decision and order in the premises shall be remitted to such circuit court and be there entered of record, and shall have effect according to the nature of the said judgment and order. (See sec. 651 and cases cited.)

Division of opinion.-A division of opinion upon the question of granting or refusing an instruction that there is no evidence to convict cannot be certified (U. S. v. Bailey, 9 Peters, 367); nor on a motion to quash an indictment (U. S. v. Rosenburgh, 7 Wall. 580; U. S. v. Avery, 13 Wall. 251); nor on motion for a new trial (U. S. v. Daniel, 6 Wheat. 542); the new trial may be granted and the cause submitted to the jury in the presence of two judges, that the points of difference may be taken upon certificate. (U. S. v. Fullerton, 6 Blatchf. 275.) A division of opinion upon a question arising on motion in arrest of judgment may be certified. (U. S. v. Kelly, 11 Wheat. 417.) This section provides for division on single points as they arise on the trial, and not for a transfer of the whole case (U. S. v. Bailey, 9 Peters, 267); and if the whole case is certified it

will be dismissed. (U. S. v. Briggs, 5 How. 208.) The certificate alone can be examined to ascertain the point on which the judges differed, and the particular point must be therein stated. (U. S. v. Briggs, 5 How. 208.)

Revision of criminal cases.-This section presents the only mode of revision of a criminal case, and this without bill of exceptions (U. S. v. Gilbert, 2 Sum. 19), as a writ of error does not lie from the Supreme to the circuit court in such cases. (U. S. v. Plummer, 3 Cliff. 1.) If the judgment is correct it will be affirmed without answering all the questions certified; but all questions certified which were considered in the final determination should be answered where judgment is reversed. (U. S. v. Reese, 92 U. S. 214.) A certificate of division cannot be granted if the judges agree in opinion and there is not doubt enough to justify submitting the question. (Ex parte Gordon, 1 Black, 503.)

Original documents.-The power to transmit original papers is confined to such as require actual inspection (Craig v. Smith, 100 U. S. 226); and where inspection is material, the court may direct that they be transmitted (The Elsineur, 1 Wheat. 439); but original affidavits used in the circuit court cannot be transmitted. (Craig v. Smith, 100 U. S. 226.) Yet an affidavit taken under an order of the court, but not arriving until after a decree, may be read in an admiralty case (The London Packet, 2 Wheat, 371); but if taken after the decree, and not on a commission, they cannot be read. (The London Packet, 2 Wheat. 371.)

New evidence.-No new evidence can be received in the Supreme Court in a case in equity, but it is heard upon the proofs sent up with the record. (Blease v. Garlington, 92 U. S. 1.) The Supreme Court will not take testimony of a witness viva voce, but will direct his deposition to be taken (The Samuel, 3 Wheat. 77), and a commission to take it may be granted. (Hawthorne v. U. S., 7 Cranch, 107.) It may be allowed for the purpose of taking testimony discovered since taking the appeal (The Western Metropolis, 12 Wall. 389), but not as a matter of course, for some satisfactory excuse must be made. (The Mabey, 10 Wall. 419; S. C., 13 Wall. 738; The Juniata, 91 U. S. 366.) It should issue from the crcuit court having jurisdiction, where witnesses are found (The Ocean Queen, 6 Blatchf. 24); and application must be first made to the Supreme Court for leave to introduce the new evidence. (The Ocean Queen, 6 Blatchf. 24.) Where the commission is issued in the usual form, the entry of an order therefor will be deemed waived. (Rich v. Lambert, 12 How. 247.)

§ 699. Writs of error and appeals, without reference to amount.-A writ of error may be allowed to review any final judgment at law, and an appeal shall be allowed from any final decree in equity hereinafter mentioned, without regard to the sum or value in dispute. First, any final judgment at law or final decree in equity of any circuit court, or of any district court acting as a circuit court, or of the supreme court of the District of Columbia, or of any Territory, in any case touching patent-rights or copyrights. Second, any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action brought by the United States for the enforcement of any revenue law thereof. Third, any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action against any officer of the revenue for any act done by him in the performance of his official duty, or for the recovery of any money exacted by or paid to him which shall have been paid into the treasury. Fourth, any final judgment at law or final decree in equity of any circuit court, or of any district court acting as a circuit court, in any case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States. Fifth, any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action brought by any person on account of

injury to his person or property by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty, title “Civil Rights." (?)

In general.-An appeal is allowed to all parties under this section, without regard to the amount in controversy (Philip v. Nock, 13 Wall. 185); but it can only be taken from a final decree (Potter v. Mack, 3 Fish. 428); and a decree for a perpetual injunction, with a reference to ascertain the damages, is not a final decree (Barnard v. Gibson, 7 How. 650; Humeston v. Stainthorp, 2 Wall. 106); it is not final until after the coming in of the master's report. (Potter v. Mack, 3 Fish. 428.) Matters in discretion are not appealable; so a motion to file an answer after default is addressed to the discretion of the court, and not subject to revision (Dean v. Mason, 20 How. 198); or to file a supplemental bill (Dean v. Mason, 20 How. 198); or a motion for permission to retract an admission in the answer. (Jones v. Morehead, 1 Wall. 155.) So, if costs taxed after receipt of a mandate from the Supreme Court are less than five thousand dollars, a second writ of error cannot be taken (Sizer v. Many, 16 How. 98); as their allowance is in the discretion of the court. (Canter v. Amer. Ins. Co., 3 Peters, 307.) When a dispute arises in regard to a contract which is not provided for or regulated by Congress, the parties stand upon the same ground as to the right of appeal as litigants in other cases. (Wilson v. Sandford, 10 How. 99.)

Revenue cases.-The provisions as to enforcement of the revenue law are limited to circuit courts (U. S. v. Carr, 8 How. 1); and to cases in which the United States is plaintiff. (Mason v. Gamble, 21 How. 390.) An action for fraud on the revenue of the post-office is within this clause (U. S. v. Bromley, 12 How. 88); or an action to enforce a forfeiture of goods for a violation of the internal revenue law (Pettigrew v. U. S., 97 U. S. 385); or an action to recover the proceeds of goods so seized. (Pettigrew v. U. S., 97 U. S. 385.)

§ 699 a. Appeal under Civil and Legal Rights Act.-That all cases arising under the provisions of this act in the courts of the United States shall be reviewable by the Supreme Court of the United States, without regard to the sum in controversy, under the same provisions and regulations as are now provided by law for the review of other causes in said court. (18 U. S. Stats. 337; 1 Sup. Rev. Stats. 149.)

§ 649. In accordance with sections 649 and 700 of the Revised Statutes, where there does not seem to be any controversy about the special finding of facts, and as there is a bill of exceptions in the case which very fairly presents the only question at issue, we proceed to examine into it. (Banigan v. Bard, 134 U. S. 291.) No question is open for revision by the Supreme Court as an appellate tribunal, where the record discloses no finding upon the facts. (Lloyd v. McWilliams, 137 U. S. 576.)

$ 700. Cases tried by the circuit court without the intervention of a jury. When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment. (See sec. 649.) Where no bill of exceptions to rulings was taken on the trial the correctness of the findings is not open to review. (Preston v. Prather, 137 U. S. 576.)

NOTE. Prior to the passage of this act causes tried by the court could not be reviewed on writ of error. (Guild v. Frontin, 18 How. 135; Kelsey v. Forsyth, 21 How. 85; Campbell v. Boyreau, 21 How. 223.) It is the only section providing for a review in the Supreme Court of a civil cause where

an issue of fact has been tried in the circuit court otherwise than by a jury. (Boogher v. Ins. Co., 103 U. S. 90.) A general exception to a special finding is not sufficient for revision. (Insurance Co. v. Lea, 21 Wall. 158.) No exception can be taken to a refusal of the circuit court to make a special finding of facts. (Insurance Co. v. Folsom, 18 Wall. 237.!

Trial by the court.-Where a party is present and goes to trial before the court without objection, he will be deemed to have waived a jury trial (Phillips v. Preston, 5 How. 278; Gilman v. Illinois & M. Tel. Co., 91 U. S. 603); but if there is nothing to show that he or his counsel were present, it is error for the court to try the issues without a jury. (Kearney v. Case, 12 Wall. 275.) If the record shows a waiver of a jury trial, but not that such waiver was in writing, it is sufficient to support the judgment but not to authorize a review of the rulings. (Kearney v. Case, 12 Wall. 275.) A recital in the record that a jury is waived is conclusive of an agreement to waive it. (Fleitas v. Cockran, 101 U. S. 301.) A statement of facts filed after judgment is no evidence of a waiver. (Flanders v. Tweed, 9 Wall. 425.) If the record does not show a waiver, judgment may be reversed and the case remanded. (Flanders v. Tweed, 9 Wall. 425. See additional notes, p. 895.) Rulings at the trial of an action at law, without a jury, when there had been no waiver of a jury by stipulation in writing signed by the parties or their attorneys, and filed with the clerk, are not reviewable under this section. (Bond v. Brown, 112 U.S. 604; Paine v. Cent Vt. Railroad, 118 U. S. 152; Dundee Mortgage Co. v. Hughes, 124 U. S. 157; Roberts v. Benjamin, 124 U. S. 64.)

Rulings.—If the case was tried by the court, the improper rejection of evidence is a proper subject for a bill of exceptions (Arthurs v. Hart, 17 How. 6); but if the testimony is cumulative, judgment will not be reversed if it could not have influenced the result. (Arthurs v. Hart, 17 How. 6.) So the admission of immaterial evidence is no sufficient reason for reversing a judgment when it would not have injuriously affected the party objecting. (Mining Co. v. Taylor, 100 U. S. 37.) The ruling on admission of evidence must be properly excepted to. (Tyng v. Grinnell, 92 U. S. 467; Weems v. George, 15 How. 190; Campbell v. Boyreau, 21 How. 223; see Field v. U. S., 9 Peters, 182.) If the judge refuses an instruction at the close of plaintiff's case that the evidence is not sufficient to entitle plaintiff to recover, the ruling is subject to review (Insurance Co. v. Folsom, 18 Wall. 237; S. C., 9 Blatchf. 201); but the rulings of the judge on prayers for instructions to submit to the jury cannot be reviewed. (Dirst v. Morris, 14 Wall. 484; Crews v. Brewer, 19 Wall. 70; Cooper v. Omohundro, 19 Wall. 65; see Miller v. Life Ins. Co., 12 Wall. 285.) A refusal to grant a new trial is not subject to review, as the granting or refusing is in the discretion of the court (Cooper v. Omohundro, 19 Wall. 65); so of the allowance of time for the production of further evidence (Gilman v. Illinois & M. Tel. Co., 91 U. S. 603); or a ruling on motion to strike out a judgment entered on the pleadings. (Cheang Kee v. U. S., 3 Wall. 320.)

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Findings.-The court under this section may determine, as in case of a special verdict, whether the facts in the agreed statement are sufficient to sustain the judgment, although the finding of the circuit court was in form general. (Supervisors v. Kennicott, 103 U. S. 554.) The findings of the court are conclusive. (Davis v. Fredericks, 104 U. S. 618.) In cases of trials not by jury, a statement of facts is necessary to enable this court to review the decision of the court below. (Bonnifield v. Price, 4 Morr. Trans. 357.) Where the finding is general, no question of law is subject to review except those growing out of the rulings (Dirst v. Morris, 14 Wall. 484; Insurance Co. v. Folsom, 18 Wall. 237; Cooper v. Omohundro, 19 Wall. 65; Crews v. Brewer, 19 Wall 70) If the judge finds the facts, and then proceeds to deduce therefrom another fact, the conclusion may be revised. (French v. Edwards, 21 Wall 147.) A statement of facts signed by counsel cannot be deemed a finding of facts. (Bethell v. Matthews, 13

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