Cases certified from the Circuit Courts. 689. arose during the trial. The judges of the court | States v. Perez, 9 Wheat. 579; 5 Cond. Rep. 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; 5 Cond. Rep. 708. 40. 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 the 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. 41. On a trial of a writ of right in the circuit court of Kentucky, the judges of the court differed in opinion 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. 42. 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 the trial of the cause was before the supreme court. The supreme court certified their opinion to the circuit court. links v. Hollingsworth, 6 Wheat. 240; 5 Cond. Rep. 79. 45. It was certified to the circuit court in this case, that an insolvent debtor, who has received his discharge under a state insolvent law, is not entitled to be discharged from execution at the suit of the United States. United States v. Wilson, 8 Wheat. 253; 5 Cond. Rep. 432. 46. 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. Stewart, 9 Wheat. 680; 5 Cond. Rep. 727. 47. 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. Wyman et al. v. Southard, 10 Wheat. 1; 6 Cond. Rep. 1. 48. The judges of the circuit court of Virginia were divided in opinion on a motion, by the counsel of the defendant, for a new trial, on an indictment against the defendant for destroying a vessel, with intent to injure the underwriters. Certain instructions were given by the circuit court, upon which the jury found the defendant guilty. The judges of the court were Wil-divided in opinion on the motion, and the same was certified to the supreme court. The court ordered it to be certified to the circuit court, that the points were correctly decided by the circuit court. United States v. Amedy, 11 Wheat. 392; 6 Cond. Rep. 362. 43. A special verdict was found by the jury, and the court divided in opinion upon a question of law which arose upon it; which division was certified to the supreme court. The court decided that judgment on the special verdict should be given for the plaintiff, and directed a certificate for the plaintiffs. Society for the Propagation of the Gospel, &c., v. The Town of New Haven, 8 Wheat. 464; 5 Cond. Rep. 489. 49. 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 supreme court. United States v. Kelly et al., 11 Wheat. 417; 6 Cond. Rep. 370. 44. This cause came up from the circuit court for the southern district of New York, upon a certificate of division of opinion of the judges of that court. The prisoner, Perez, was put on his trial for a capital offence; and the jury being unable to agree, was discharged without giving a verdict, without the consent of the counsel of the United States or of the prisoner's counsel. The counsel claimed the right of the defendant 50. The jury having found a verdict of guilty, to his discharge, and the court divided in opi- against the defendant, for offering violence to nion on the motion to discharge him; which divi- the person of the chargé d'affaires of Spain, his sion was certified to the supreme court. The court counsel moved to arrest the judgment, on the directed it to be certified, that the discharge of the ground, "that the circuit court has not jurisdicjury for not agreeing, constitutes no bar to further tion of the matter, inasmuch as it is a case af proceedings, and gives no right of exemption to fecting an ambassador or other public minister." the prisoner being again put on his trial. United | The opinions of the judges being opposed on Cases certified from the Circuit Courts. the United States, and on which jurisdiction had been given to the court." On the argument of the case, the opinions of the judges of the court were opposed on the question of jurisdiction; and it was certified to the supreme court. It was certified that the circuit court had jurisdiction of the case. The Postmaster-General v. Early, 12 Wheat. 136; 6 Cond. Rep. 480. 55. 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 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. 51. 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 taxes, &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 disagree-judges of the circuit court were opposed; the ment 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 imperfectly stated, and refused to give a certificate of their opinion. Perkins v. Hart's Ex'r., 11 Wheat. 237; 6 Cond. Rep. 287. 52. The certificate stated, that the plaintiff, to maintain his action, offered in evidence a patent, purporting to be a grant in due form of law to one Basil Jones, for seven thousand three hundred acres of land, including the premises in question; and also the warrant of survey on which the tract of land was surveyed and laid off; and the minutes of the court which granted the warrant. The defendant objected to the grant going to the jury, affirming the same to be void in law; inasmuch as no grant could issue, under the laws of the state, for so great a number of acres as are comprised in the grant. On this question the court was divided, and the division was certified to the supreme court. The court directed it to be certified to the circuit court, that the laws of Georgia, at the time the grant was issued, did not prohibit the issuing a patent to any person for more than one thousand acres of land, &c. Patterson v. Winn, 11 Wheat. 380; 6 Cond. Rep. 355. 53. This case came up on a certificate of division of opinion of the judges of the circuit court for Kentucky, to quash the return of the marshal, upon a venditioni exponas, issued in the case. The court ordered it to be certified, that the return of the marshal was insufficient, and should be quashed. Bank of the United States v. Halstead, 10 Wheat. 51; 6 Cond. Rep. 221. 54. An action was instituted in the circuit court of Georgia, by the postmaster-general, against the defendant, a postmaster at Savannah, on a bond executed by him to the postmastergeneral, for the recovery of a sum of money which came into his hands as postmaster. It was pleaded, that the circuit court had not jurisdiction, as "it was not a suit in which the United States was a party; nor the debt declared as one contracted, authorized, or arising under a law of 56. 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. 57. The question before the court, on a certificate of division of opinion of the circuit court of Massachusetts, was, whether two or more persons, jointly charged in the same indictment with a capital offence, have a right to sever in their trials, the counsel of the United States objecting thereto; or whether it is a matter to be allowed in the discretion of the court. The court ordered it to be certified to the circuit court, that it was a matter within the discretion of the court. United States v. Merchant and Colson, 12 Wheat. 480; 6 Cond. Rep. 588. 58. A case was stated for the opinion of the court, in the circuit court of the southern district of New York, in an action against the endorsers of a bill of exchange, which had been paid for their honour; and a verdict was found for the plaintiff, subject to the opinion of the court, on the case so stated. The judges of the court were divided in opinion on the following points: 1. Whether the letters offered in evidence by the defendants, and objected to, ought to have been admitted. 2. Whether the plaintiff had a right, under the circumstances, to accept and pay the bill upon which suit was brought for the honour of the defendants; and is entitled to recover the amount with interest, charges, &c. These points were directed to be certified to the supreme court; and the whole of the case stated came up with the certificate of division. The court directed it to be certified to the circuit court, that the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under the protest, for the honour of the defendants; and is entitled to recover the amount with damages and interest. Konig v. Bayard et al., 1 Peters, 250. Cases certified from the Circuit Courts. 59. 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 were 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. 60. 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. Dox et al. v. The Postmaster-General, 1 Peters, 318. 61. The facts of the case were agreed by the counsel for the plaintiff and defendant; and the agreed case was stated in the record. The judges of the circuit court of Rhode Island having divided in opinion upon the case, the same was certified to the supreme court for decision. The court directed it to be certified that the plaintiff was entitled to recover upon the facts agreed in the case, and that judgment ought to be given for the plaintiff. Gardner v. Collins, 2 Peters, 58. 62. 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. 63. 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 question on which they divided was certified to the supreme court. Buckner v. Finley and Van Lear, 2 Peters, 586. 64. 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 Trustees of the Sailor's Snug Harbour, 3 Peters, 99. 24* 65. 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 endorser of a promis sory 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. 66. 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 may be had therein according to law. Saunders v. Gould, | 4 Peters, 392. 67. This case was certified from the circuit court of Vermont, the judges of that court being opposed in opinion on three questions. 1. Whether the plaintiffs have shown that they have a right to hold lands: 2. Whether the plaintiffs are barred by certain statutes of limitations of covenant: 3. Whether the plaintiffs are entitled, and for how long, to recover mesne profits. These questions arose on an agreed case, in which all the matters in the cause were stated. The supreme court directed it to be certified to the circuit court: 1. That the plaintiffs had a right to hold lands, and especially the lands in controversy: 2. That the plaintiffs are not barred by the statutes of limitations: 3. That no mesne profits can be recovered, unless the parties, plaintiffs, bring themselves within the provisions of the laws of Vermont of 15th November, 1830. The Society for the Propagation of the Gospel v. The Town of Pawlet, 4 Peters, 480. 68. 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 estate of a testator. These questions were certified to the supreme court. Backhouse v. Patton, 5 Peters, 160. 69. 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. 70. The question on which the judges of the circuit court of Maryland were opposed in opinion was, whether there was a variance between the contract declared upon, and the contract given in evidence; the action being against the defendants as surviving partners: when it was alleged, that one of the defendants had died before any of the transactions happened, out of which the suit arose. Schimmelpennich v. Turner, 6 Peters, 1. 71. An action of debt was brought on a pro 2 L Cases certified from the Circuit Courts. 150. missory note in the circuit court for the district | for its decision. United States v. Wilson, 7 Pettrs, 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. 72. 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. 73. On the motion of the defendants, a rule was given in the circuit court of Ohio, on the marshal, to show cause why the taxation of costs in the case on execution should not be reversed and corrected. The judges of the circuit court were divided in opinion, and the division was certified to the supreme court. Held, That the case was not within the provision of the judiciary act of 1802; and that this question could not be certified to the supreme court. Bank of the United States v. Green and others, 6 Peters, 26. 74. In this case the court decided that a division of opinion between the judges of the circuit court of New York, on a motion for a new trial, could not be certified to the supreme court. The parties agreed that the case should stand as if a judgment had been entered in the circuit court of New York, and a writ of error prosecuted. The court went on to decide the case. Grant et al. v. Raymond, 6 Peters, 218. 75. The defendant was indicted on the 24th section of the act of congress of 2d March, 1825, entitled an act to reduce into one the several acts establishing and regulating the post-office department, for advising, procuring, and assisting one J. S., a mail-carrier, to rob the mail; and being convicted, he submitted a motion in arrest of judgment: one reason in support of which motion was, that the indictment did not sufficiently show an offence against the said act, because the same did not directly charge, or otherwise aver, that the said J. S. did actually rob the mail: and upon argument, the judges were opposed in opinion on this question, viz., whether an indictment grounded on the said statute for advising, &c., a mail-carrier to rob the mail, ought to set forth and aver that the said carrier did commit the offence of robbing the mail: and therefore the judges directed the same to be certified to the supreme court. United States v. Mills, 7 Peters, 138. 76. 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, 77. 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. 78. 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 congress, 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. 79. 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. 80. A question, whether a plaintiff in ejectment 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 Lessee v. Vaughan et al., 10 Peters, 367. 81. Certain points, on which the judges of the circuit court were divided in opinion, were certified to the supreme court, by the circuit court of Rhode Island. The whole of the matters in the case were sent up in the record. The question certified was, whether a confirmatory act of the assembly of Rhode Island was sufficient to divest the title of those who claimed the land and gave a title to the grantees on a deed confirmed by the act. This question was presented, in effect, in six questions, on which the judges of the circuit court were opposed in opinion. The certificate of the supreme court stated that the court was of opinion that the grantees in the deed confirmed by the legislature of Rhode Island took an absolute title to the premises in dispute in the cause: which opinion answers the first, second, third, fourth and sixth questions so certified; and also the fifth question, except that part of the fifth question which refers to a description of the premises, and which is not so stated as to enable the supreme court to express an opinion. Leland et al. v. Wilkinson, 10 Peters, 294. Cases certified from the Circuit Courts. 82. Questions respecting the practice of the circuit court in equity cases, which depend on the sound discretion of the court, in the application of the rules which regulate the course of equity proceedings to the circumstances of each particular case, are not questions which can be certified on a division of opinion of the circuit court. Packer v. Nixon, 10 Peters, 408. 83. 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 certified, and answered by the supreme court. Denn, Lessee of Scott, v. Reid et al., 10 Peters, 524. 84. On an indictment for passing a silver coin of Spain, called "a head pistareen," the judges of the circuit court of New Jersey were opposed in opinion: 1. Whether the head pistareen was a part of the Spanish dollar. 2. Whether it is made current by a law of the United States. These questions were certified to the supreme court, and the indictment and a special verdict, containing all the facts of the case, were sent up with the record. The court directed an answer, in the negative, to be certified to the circuit court. United States v. Gardner, 10 Peters, 618. court: and also that the pleas in bar, or either of them, were not a defence to the action. Waters v. The Merchants' Louisville Ins. Co., 11 Peters, 213. 87. 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. 88. 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. 89. The judges of the circuit court of Kentucky were divided in opinion, whether, on the whole circumstances appearing in the case, the court can have jurisdiction. The bill on the equity side of the court, and the answer of the defendants, upon which the question of jurisdiction arose, were sent up with the record. The division of opinion between the judges was certified to the supreme court; and by that court it was certified, that the circuit court had jurisdiction of the case. Boone et al. v. Chiles et al., 8 Peters, 532, 90. The judges of the circuit court of Massachusetts were opposed in opinion on five points which arose on the trial of the cause before a jury; 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, 495. 85. 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 91. The judges of the circuit court of Kentucky southern district of New York were opposed in were divided in opinion on a motion for instrucopinion on the question, whether the act of the tions to the jury, made by the defendant's coun legislature of New York, mentioned in the de-sel, that, on the evidence, the jury should find claration, 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. Miln, 11 Peters, 102. 86. In an action on a policy of insurance on the steamboat Lioness, the defendant filed certain pleas, to which the plaintiffs demurred: and on the argument on the demurrer, the judges of the circuit court were opposed in opinion; and the same were certified, at the request of the defendant. The questions certified were: 1. Whether the policy covered a loss by fire, caused by the barratry of the master? 2. Does the policy cover a loss by fire, caused by the negligence, carelessness, or unskilfulness of the master and crew, or any of them? 3. Is the allegation, that the loss by fire was caused by the negligence, careless neglect, or unskilful conduct of the master and crew, a defence to the action? 4. Are the pleas, or either of them, sufficient? The supreme court decided the first, second, and third questions in favour of the plaintiff, and certified the same to the circuit that the defendant was not guilty of the offence for which he was indicted. This was certified to the supreme court; and the court directed a certificate that the evidence was sufficient to authorize a condemnation of the defendant, the case being within the provisions of the act of congress, on which the defendant was indicted. United States v. Bailey, 9 Peters, 238. 92. The defendant was indicted under the act of March 3d, 1823, entitled "an act for the punishment of frauds committed on the government of the United States." The counsel for the defendant moved the court to instruct the jury that the evidence did not conduce to establish the offence denounced in the first section of the act, which motion the attorney of the United States opposed; and on this question the opinions of the judges were opposed. The whole case, and the question on which the judges were di vided, were certified to the supreme court. The court were of opinion, that the whole case having been certified to the supreme court, and it having been repeatedly decided by the court |