PART 5. the defendant's plea, was in favor of the plaintiff, and such judgment was reversed; the judgment was, that the plaintiff take nothing by his writ. Thorndike v. The United States, 2 Mason, 1. In the case of Slacum v. Pomery (6 Cranch, 221), the error relied upon was a defect in the plaintiff's declaration; and the defect being considered fatal by the supreme court, the judgment of that court was, that the judgment should be arrrested, and that the cause should be remanded to the circuit court, with a direction to that effect. In the case of Lanusse v. Barker (3 Wheat., 101), the judgment below was in favor of the defendant upon a general verdict, and the writ of error was founded upon a bill of exceptions taken at the trial. The counsel in the court below had entered into an agreement, which appeared upon the transcript of the record, that if the judgment should be reversed, judgment should be rendered by the supreme court for some one of several specified sums, according as that court might be of opinion that the plaintiff below was entitled to recover the one or the other of such sums. The judgment was reversed, but the court refused to give effect to the agreement, or to direct the circuit court to enter judgment for a specified amount. They considered the agreement as forming no part of the record, and were of opinion, moreover, that to act upon it would be to exercise a power too nearly approaching the province of a jury, and, therefore, merely directed that a venire de novo should be issued. Where, on a writ of error, it appears that the jurisdiction exercised by the circuit court was unauthorized, the judgment is reversed, and the cause remanded with a mandate to dismiss it. Cullen v. Rea, 7 Howard, 729. When the judgment of the circuit court was a rightful judgment of dismissal for want CHAP. 5. of jurisdiction, the judgment is affirmed. When the appellate jurisdiction does not extend to the case, the writ of error, as we have seen, is simply dismissed. But when the appellate jurisdiction is abrogated, or ceases to exist during the pendency of the writ of error, the judgment is, that it be abated, and in such case no mandate is to be sent to the court below, but only a certified copy of the judgment. McNulty v. Batty et al., 10 Howard, 72; S. C., id., 646. CHAPTER V. OF THE PROCEEDINGS UPON CERTIFICATE OF DISAGREE- This mode of bringing into action the advisory PART 5. upon motion in arrest of judgment upon special verdict, or verdict taken subject to the opinion of the court. But not to questions of fact; and therefore were one of the questions certified was whether the evidence was sufficient to prove an averment in the pleadings, it was held to be inadmissible. Silliman v. The Hudson River Bridge Company, 1 Black, 582. Nor to questions of practice subject to the discretion of the court; the true rule being, that the question must be one, a decision upon which, in the circuit court, would be subject to review on writ of error or appeal. Wiggins et al. v. Gray et al., 24 Howard, 303; and see, also, Davis v. Braden, 10 Peters, 288; and Parker Nixon, id., 410. A recurrence to the state of the law before the passage of this act, and a glance at the important changes introduced by it in the organization of the circuit courts, will render the design and necessity of the provision in question sufficiently manifest. Previous to that time, the circuit courts were composed of two judges of the supreme court and the district judge of the district where the court was held, and the judges of the supreme court changed their circuits. If all the three judges were present, no division of opinion could take place. If only one judge of the supreme court attended, and a division occurred, the cause was continued until next term, when a different judge would attend. Should the same division continue, there would then be the opinion of two judges against one; and the law provided, that in such case, that opinion should be the judgment of the court. But the act of 1802, made the circuit courts to consist of one judge of the supreme court and the district judge, and confined the several judges of the supreme court to their respective circuits, so that the same judge constantly attends the same circuit. This great improvement of the pre-existing system, was attended CHAP. 5. with this difficulty. The court being always composed of the same two judges, any division of opinion would remain, and the question would continue unsettled; and it was to remedy this inconvenience that this mode of proceeding was introduced. See the case of The United States v. Daniel, 6 Wheat., 542. It is proper to remark, however, that, in practice, this convenient method or obtaining an authoritative decision upon questions of difficulty and importance, is sometimes resorted to, without the actual expression or even formation of hostile opinions between the judges of the circuit court. But it has been justly observed by Mr. Chief Justice TANEY, that no party has a right to ask such a certificate, nor can it be made consistently with the duty of the court, if the judges are agreed and do not think there is sufficient ground for doubt to justify them in submitting the question to the judgment of the supreme court. The act provides that nothing therein contained shall prevent the case from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits. And generally, when the question arises upon the trial, the cause may nevertheless proceed. As, for example, when the question respects the admissibilty of evidence, the evidence may be received, reserving the question of its admissibility, to be decided, if necessary, upon a certificate of disagreement of opinion. The general rule, with respect to the form and contents of the statement to be certified to the supreme court, is, that it must contain so much of the pleadings and evidence as is necessary, in order fully to present the point or points upon which the judges disagree, and that these points must be stated with precision. Thus, in the case of Perkins v. Hart (11 Wheat., 237), PART 5. the statement was held to be defective, because the points, as stated, involved questions of fact, which ought to have been settled by the jury, as well as questions of law. So in the case of Barnes v. Williams (11 Wheat., 415), the difference of opinion occurred upon a special verdict; and the statement was held defective in that the special verdict stated the evidence of the fact instead of the fact itself. In the case of Wolf v. Usher (3 Peters, 269), and of Saunders v. Gould (4 Peters, 292), the particular point upon which the judges differed was not stated; but the whole record was sent up, and it was certified merely that the court had differed in opinion, without stating what that difference was; and on this account the statements were held to be defective. In such cases the supreme court refuse to take jurisdiction of the cause, but merely certify the insufficiency of the statement, and remand the cause to the circuit court for further proceedings, according to law. Such, at least, appears to have been the disposition of all the cases with which I have met except one. And, indeed, in the case of Perkins v. Hart (11 Wheat., 237), Judge WASHINGTON, who delivered the opinion of the court, after pointing out at length the defects in the statement sent up, concluded with the following observations: "Were this cause before the court upon a writ of error, the imperfections in the points reserved which have been noticed would render it proper to reverse the judgment, and to direct a venire de novo to be awarded. Being an adjourned cause it would be improper for this court to give any such direction to the court below." But in the case above cited of Barnes v. Williams (forming the exception above alluded to), Chief Justice MARSHALL, in delivering the opinion |