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district court, acting as a circuit court, in cases of equity, of admiralty and maritime jurisdiction, and of prize or no prize, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of two thousand dollars, is allowed to the supreme court; and upon such appeal, a transcript of the libel, bill, answer, depositions, and other proceedings in the cause, is transmitted to the supreme court; and no new evidence is received in such court, on the hearing of such appeal, except in admiralty and prize causes, and such appeals are subject to the same rules, regulations, and restrictions, as are prescribed in law in case of writs of error.(1)*

(1) Act 3d March, 1803, sec. 2. Oliver v. Alexander, 6 Pet. 143.

• Under the judiciary acts of September 24th, 1789, and March 30, 1803, admi. ralty, maritime, or equity causes cannot be carried from the circuit to the supreme court by writ of error; but the proper mode of removing them is by appeal.The San Pedro, 2 Wheat, 132.

In the removal of such cases by appeal, the rules, regulations, and restrictions, contained in the twenty-second and twenty-third sections of the judiciary law, 1789, respecting the time within which a writ of error shall be brought-in what instances it shall operate as a supersedeas—the citation to the adverse party—the security to be given by the plaintiff in error, for prosecuting his suit, and the restrictions upon the appellate court as to reversal, are applicable, and are to be substantially observed, except than when the appeal is prayed at the same term at which the sentence is pronounced, a citation is not necessary.—The San Pedro, 2 Wheat. 132. Reilly v. Lamar, 2 Cr. 349.

An appeal prayed for and allowed within five years is valid, though the security be not given until after the lapse of five years. The mode of taking the security, and the time for perfecting it, are within the discretion of the court below, and the supreme court will not interfere with the exercise of that discretion.—The Dos Hemanos, 10 Wheat. 306.

The writ of error submits the law only, to the revision of the superior court ; but an appeal brings before it the facts and the law. The court, on appeal, may correct, not only wrong conclusions of law from the facts, but erroneous deductions of fact from the evidence.—The San Pedro, 2 Wheat. 132. U. States v. Wonson, 1 Gall. 5. Yeaton v. U. States, 5 Cranch, 281. For this purpose, all the testimoor adduced before the court below, must be laid before the supreme court ; and if there have been parole evidence on the trial before the inferior court, affecting the decree, which does not appear upon the record, the decree must be reversed and the cause remanded. The parties may waive testimony by consent, but if such consent do not appear it cannot be presumed.-Conn. v. Penn. 5 Wheat. 434. 10 Wheat. 502.

The appellate jurisdiction of the supreme court extends to an admiralty or mari. time cause in the circuit court, brought there by appeal from the district court. -U. States v. Goodwin, 7 Cr. 108. Westcart' v. Dauchy, 3 Dall. 321. But to sustain the appeal, the decree in such case must be final.—Young v. Grundy, 6 Cr. 51. Gibbons v. Ogden, 6 Wheat. 448. Ray v. Law, 3 Cr. 179, 4 Dal. 22. But the appellate jurisdiction of this court does not extend to the decisions of the circuit courts in criminal cases.—United States v. More, 3 Cr. 159. Exparte Kearny, 7 Wheat. 36.

Though a decree of an inferior court be final, as it regards such court, it is not definitive as to the subject matter, while an appeal exists. Hence, if between the decree of the inferior and the decision of the appellative court, a law intervenes, changing the rule, such law must be obeyed, (United States v. schr. Peggy, 1 Cr. 103. Yeaton v. United States, 5 Cr. .) even though the proceeds of the subject in controversy be paid to the appellee before such change of the law.Schr. Rachel v. U. States, 6 Cr. 329.

In admiralty cases, an appeal suspends the sentence altogether; it is not res adjudicata till the final sentence of the appellate court. It is lawful to allege what was not before alleged, and to prove what was not before proved.—Yeaton v. U. States, 5 Cr. 280. Penhallow v. Doanes's administrators, 3 Dall. 54.

If a mandate be issued by the supreme court, on reversing the decree of an inferior court, and that court do not correctly execute such mandate, an appeal lies : (Martin v. Hunters' lessee, 1 Wheat. 354. Himely v. Rose, 3 Cr. 313.) but on such appeal the court will regard nothing which is not subsequent to their man

502. When any question occurs before a circuit court, upon which the opinions of the judges are opposed, the point upon which the disagreement happens, may, during the same term, upon the request of either party, or

date, (Martin v. Hunters' lessee, 1 Wheat. 354. Himely v. Rose, 4 Cr. 313.) nor will they inquire into the merits of the original decree; (Browder v. M‘Arthur, 7 Wheat. 58.) nor, on motion, open such decree.-Himely v. Rose, 5 Cr. 313. But the original proceedings are always before the court, so far as is necessary to determine any new points in controversy between the parties, which are not terminated by the original decree.—M'Donough v. The Mary Ford, 3 Dall. 198.

The court, on appeal, does not notice the interest in the cause of parties who are not appellants.—The Santa Maria, 10 Wheat. 431.

In an equity cause, pending an appeal, the circuit court may invest in the stocks, property sold by their order. And on an appeal in an admiralty case, the

property litigated, or its proceeds do not follow the cause into the supreme court; but in such case the circuit court may dispose thereof, though it be there, on appeal from the district court.-Spring v. South Carolina Insurance Company, 6 Wheat. 519. The Collector, 6 Wheat. 203. The Grotius, 4 Gall. 503. Jennings v. Carson, 4 Cr. 2.

This court adopts the customs and usages of courts of admiralty and equity, constituted on like principles, with discretionary power it adapts them to the peculiar circumstances of the country, subject to the control of congress.—Grayson v. Vir. ginia, 3 Dall. 320. In prize causes especially, the allegations, the proofs, and the proceedings are in general modelled upon the civil law, with such additions and alterations as the practice of nations, and the rights of belligerents and neutrals, unavoidably impose. The court of prize is emphatically a court of the law of nations, and does not take its character or rules from the mere municipal regulations of any country.-The schr. Adeline, 9 Cr. 244.

On appeal, it is the practice of the supreme court to hear the cause, first on the evidence transmitted from the circuit court, and to decide on that whether further proof will be

allowed. If such proof be admissible, an order is made.-The London Packet, 2. Wheat. 372. Brig James Wells v. U. States, 7 Cr. 22.

In all cases where further proof is ordered by the court, the depositions which shall be taken, shall be by a commission issued from this court, or from any circuit court of the United States.-Rule of court, Feb. 1816. Hawthorn v. U. States, 7 Cr. 107.

In all cases of admiralty and maritime jurisdiction, where new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken un. der a commission issued from this court, or from any circuit court of the United States, under the direction of any judge thereof: and no such commission shall issue but upon interrogatories to be filed by the party applying for the commission, and notice to the opposite party, or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross interrogatories within twenty days from the service of such notice. But no party shall be prevented from giving testimony in open court, in cases where by law it is admissible.-Rule of court, Feb. 1817.

New evidence is admissible in instance or revenue causes, which are pending in this court on appeal, as well as in prize causes : and a commission may be obtained for that purpose.-Brig James Wells, 7 Cr. 22. The Clarissa Claiborne, ibid. 107. The Argo, 2 Wheat. 298. Note. if the court below deny an order for further proof, when it ought to be granted, or allow it improperly, and the objection be taken by the party, and appear upon the record, this court, on appeal, may admi. nister the proper relief. But, if such proof appear on the record, without order or objection, it will be presumed to have been done by consent, and the irregularity is waived. --The Pizarro, 2 Wheat. 227. And time for further proof will be extended to captors as well as claimants.—The Grotius, 8 Cr. 356, 9 ibid. 368.

An affidavit taken in the court below, under an order for further proof not ar. riving till after condemnation being attached to the record, may be read in evidence in the supreme court on appeal.— The London Packet, 2 Wheat. 372.

Whenever it shall be necessary or proper, in the opinion of the presiding judge, in any circuit court or district court, exercising circuit court jurisdiction, that original papers of any kind should be inspected in the supreme court upon appeal, such presiding judge may make such order for the safe keeping, transporting, and return of such original papers as to him may seem proper, and this court will re. ceive and consider such original papers in connexion with the transcript of the proceedings.-Rule of supreme court, Feb. 1817, 2 Wheat. 7.

Where merits clearly appear upon the record, the supreme court in admiralty

3

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. And the deci. sion of the supreme court, and their order in the premises, shall be remitted to the circuit court, and be there entered of record, and shall have effect according to the nature of such judgment and order : but nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, farther proceedings may be had without prejudice to the merits; and imprisonment is not allowed, nor punishment in any case inflicted, where the judges of the said court are divided in opinion upon the question touching such imprisonment or punishment.(1)*

(1) Act 29th April, 1802, sec. 6.

proceeding, do not dismiss the libel for irregularity in stating the ground of the proceeding, but allow the party to assert his rights by a new allegation ; and for this purpose will remand the cause to the circuit court with directions to allow an amendment.—The schr. Adeline, 9 Cr. 244. The Caroline, 7 Cr. 496. The Ed. Fard, 1 Wheat. 261. The Divina Pastora, 4 Wheat. 52.

The supreme court in prize causes, having only an appellate jurisdiction, a claim cannot be interposed there after appeal. But, if the court below has proceeded to adjudication before the lapse of a year and a day, this court will remand the cause, with directions to the court below, to allow a claim to be filed, and the libel to be amended.—The Harrison, 1 Wheat. 298. The Society, 9 Cranch, 209. See Montgomery v. Hernandez & al. 12 Wheat. 120. Winn's heirs v. Jackson & al. 12 Wheat, i35.

The supreme court has appellate jurisdiction from the decisions of the district courts, having circuit court jurisdiction, even in causes properly cognizable by the district courts of the United States.-Durosseau v. United States, 6 Cr. 307.

• In a case brought before the judges of the supreme court, by reason of the difference of opinion of the judges of the circuit court, the question only on which the judges were opposed will be considered : but the parties may bring a writ of error on the final judgment below.–Ogle v. Lee, 2 Cr. 33.

The supreme court has no jurisdiction of a cause originally brought in the dis. trict court, and removed by writ of error to the circuit court, though there be an alleged difference of opinion between the judges of the circuit court, since the dstrict judge cannot sit in the circuit court on a writ of error from his own deci. sion.-U. States v. Lancaster, 5 Wheat. 434.

The supreme court cannot entertain jurisdiction of a question on which the opinions of the judges of the circuit court were opposed where the division of opinion arises upon a proceeding subsequent to the decision of the cause in that court.Devereux v. Man, 12 Wheat. 212. Bank. U. States v. Green & al. 6 Pet. 26.

After the whole case had been laid before the circuit court, by the United States, the counsel for the prisoner moved the court to instruct the jury, that the evidence did not conduce to prove the offence charged under the acts of congress, wluich was opposed by the United States, and on this question the judges were dirided and their opinions opposed. The question and disagreement were stated and ordered to be certified to the supreme court.

The language of the 6th section of the act of 1802, (article 502,) shows conclusively that congress intended to provide for a division of opinion on single points which frequently occur upon the trial of a cause; not to enable a circuit court to transfer an entire cause into the supreme court before a final judgment. A construction, authorizing such transfer, would counteract the policy which forbids writs of error or appeals, until the judgment or decree be final.-U. States v. Bai. ler, 9 Peters, 267. Harris v. Elliot, 10 Peters, 25.

The questions which may be certified are those which may arise on the trial of the case, and are such as may be presented upon the final bearing of a cause or pleas to the jurisdiction of the court.-Davis v. Braden, 10 Peters, 287.

A question whether a plaintiff in ejectment shall be permitted to enlarge the term in the demise in an action of ejectment, is one within the discretion of the Court, to which the motion for the purpose is submitted; and cannot be certified to the supreme court, if the judges of the circuit court are divided in opinion on the motion, under the provisions of the act of congress, 29th April, 1802.--Smith v. Vaughan & al. 10 Pet, 367. See Packer v. Nixon, ibid. 408.

CHAPTER III.

OF THE CIRCUIT COURTS.

SECTION I.

Of the Organization of the Circuit Courts.

Of what judges constituted 503 Fourth circuit

510 Allotment of judges to circuits, when Fifth circuit

511 and how made 504 Sixth circuit

512 Adjournment when no quorum, how Seventh circuit

513 made

505 Special provisions relative to cir. Number of judicial circuits

506

cuit courts in Tennessee First circuit-sessions therein 507 Provision when the first day of sesSecond circuit

508
sion falls on Sunday

521 Third circuit

509

514 & seq.

Art. 503. The circuit courts of the United States shall be composed of a justice of the supreme court, and of the district judge of the district in which the circuit court is held.(1) In cases where special circumstances may, in the opinion of the supreme court, render it necessary, such court may assign two of its members to attend a circuit court.(2) And where one judge of the supreme court attends a circuit court, and the district judge may be absent, or have been counsel, or is interested in any cause pending, the circuit court may consist of such judge of the supreme court alone.(3) No district judge shall vote in any case of appeal or error from his own decision, but may assign the reason of his decision.(4)*

(1) Act 24th Sept. 1789, sec. 4.-Act 2d March, 1793, sec. 1.

(2) Act 2d March, 1793, sec. 1.

(3) Ibid.-Act 29th April, 1802, sec. 4.-Pollard v. Dwight, 4 Cr. 428.

(4) Act 24th Sept. 1789, sec. 4.

Where the point on which the judges of the circuit court divided in opinion was not certified, but was to be ascertained from the whole of the record, the court refused jurisdiction of the case.-Wolf v. Usher, 3 Peters, 269.

The supreme court may issue writs of prohibition to a district court, when proceeding as a court of admiralty and maritime jurisdiction, to stay proceedings be. fore sentence, when that court exercises a jurisdiction not granted by the law of nations, or constitution or laws of the United States: (U. States v. Peters, 8 Dall. 121.) and such proceeding in prohibition, or other similar writ, is appellative in its nature.—Cohens v. Virginia, 6 Wheat. 397.

The supreme court cannot remove a cause from a circuit court by certiorari, on the allegation that the circuit court has no jurisdiction of the case, but that the jurisdiction over it belongs to the supreme court: nor does certiorari lie in such case to change the venue and grant an impartial trial.-Fowler v. Lindsey, 3 Dall. 411.

A certiorari issues on an allegation of diminution, or where that will not answer, the court directs a special certiorari to be framed, suited to the case.—Barton v. Petit, 7 Cr. 288.

• When the district judge does not judicially sit in a cause in the circuit court, he is considered as absent, in contemplation of law.-Bingham v. Cabot, 3 Dall. 19.

If a vacancy occur by the death of the justice of the supreme court, to whom any circuit was allotted, the district judge may discharge the official duties, except that he cannot sit upon a writ of error from a decision in the district court.-5 Wheat. 434. Pollard v. Dwight, 4 Cr. 428. United States v. Lancaster, 5 Wheat. 434.

The district judge may alone hold a circuit court, although there be no judge of the supreme court allotted to the circuit.-Pollard v. Dwight, 4 Cranch, 421.

504. On every appointment of a chief justice or associate justice, an allotment is made of the circuits, among the justices, and is entered of record. If no such allotment be made by the justices next succeeding such appointment, and also after the appointment of any judge, and before any other allotment shall have been made, the president may make such allotment as he shall deem proper—which allotment, in either case, shall be binding until another allotment is made.(1)*

505. The circuit court may be adjourned from day to day, by any one of its judges, or if none are present, by the marshal of the district, until a quorum be convened.(2) And if no justice of the supreme court attends within four days after the time appointed by law for the commencement of the session, the court may be adjourned to the next stated term, by the judge of the district, or in case of his absence, by the marshal.(3)

506. There are seven judicial circuits, and in each district of such circuits, two courts are annually holden.(4)

507. The first circuit is composed of the districts of Rhode Island, Massachusetts, New Hampshire, and Maine.(5) The sessions of the court are annually holden, in the district of New Hampshire, at Portsmouth, on the eighth day of May, and at Exeter, on the eighth day of October (6) In the district of Rhode Island, at Newport, on the fifteenth of June, and at Provi. dence, on the fifteenth of November. In the district of Massachusetts, at Boston, on the fifteenth of May, and the fifteenth of October ;(7) and in the district of Maine, at Portland, on the first day of May; and at Wiscasset, on the first day of October (8)

508. The second circuit is composed of the district of Connecticut, the southern district of New York, and the district of Vermont,(9) and holds its sessions annually, in the district of Connecticut, at New Haven, on the last Wednesday in April, and at Hartford, on the seventeenth of September ; in the district of New York, at the City Hall of the city of New York, on the first Monday of April and last Monday of October ;(10) and in the district of Vermont, at Windsor, on the twenty-first day of May, and at Rutland, on the third of October.(11) The original jurisdiction of the circuit court for the southern district of New York, shall be confined to causes arising within such district, and shall not extend to causes of action arising within the northern district of New York.(12)

There shall be held annually in the city of New York two additional ses. sions of the circuit court, for the said district, for the trial of criminal causes and suits in equity, to commence on the last Monday of February and the last Monday of July: and the said court may, at its discretion, direct special sessions thereof to be held in the said city, for the trial of criminal causes or

(1) Act 29th April, 1802, sec. 5.-See (8) Act 30th March, 1820.-Act 3d Act 13th April, 1792, sec. 3.

March, 1823. (2) Act Sept. 24th, 1789, sec. 6. (9) Act 29th April, 1802, sec. 4.-Act (3) Act May 19th, 1794.

April 9th, 1814.-Act April 3d, 1818, (4) Act 29th April, 1802, sec. 4.- Act sec. 6.-Act March 2d, 1791. 24th Feb. 1807, sec. 2.

(10) Act March 3d, 1797.-April 29th, (5) Act 29th April, 1802, sec. 4.-Act 1802.—May 13th, 1826.- Act 10th Feb. 30th March, 1820.

1832. (6) Act 26th March, 1812.- Act 3d (11) Act April 29th, 1802.-Act March March, 1823.

220, 1816. (7) Act 26th March, 1812.-Act 30th (12) Act Sd April, 1818, sec. 6. March, 1820.

• It is not requisite for the judges of the supreme court to have distinct commissions as circuit court judges. --Stuart v. Laid, 1 Cr. 308.

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