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here, he should have filed his bill of review, and supported it by depositions. Ib.

38. (Oct., 1876.) An order striking out an answer, as it ends the cause, leaves the action undefended, and confers a right to immediate judgment, is subject to review in the appellate court. Fuller v. Claflin, 3 Otto, 14.

39. (Oct., 1877.) Granting a rehearing, or granting or dissolving a temporary injunction, rests in the sound discretion of the court, and furnishes no ground for an appeal. Buffington v. Harvey, 5 Otto, 99.

40. (Oct., 1878.) Under the act of Feh. 16, 1875, which took effect May 1 of that year, entitled “ An Act to facilitate the disposition of cases in the Supreme Court of the United States, and for other purposes ” (18 Stat. 315), the finding of facts by the Circuit Court in admiralty cases is conclusive, and only rulings upon questions of law can be reviewed by bill of exceptions. The Abbotsford, 8 Otto, 440.

41. (Oct., 1878.) A bond accepted by the court upon ordering the delivery to the claimant of property seized in admiralty is, in the subsequent proceedings, a substitute for the property ; and the question, whether a case is made for the recall of the property, must be determined before a final decree on the bond is rendered in the District Court, or in the Circuit Court on appeal. Action on that question cannot be reviewed here. United States v. Ames, 9 Otto, 35.

42. (Oct., 1879.) The order refusing him such leave [to amend his bill after a demurrer thereto has been sustained] cannot be reviewed here, if the record does not show what amendment he desired to make. National Bank v. Carpenter, 11 Otto, 567.

43. (Oct., 1880.) A proceeding in the court below for contempt cannot be re-examined here on an appeal or a writ of error. Hayes v. Fischer, 12 Otto, 121.


Review of Decisions of Circuit Courts, on Certificate of Divi

sion of Opinion.

SEC. 693. 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 s. 652.]

1 June, 1872, c. 255, s. 1, v. 17, p. 196. 16 Feb., 1875, c. 77, v. 18, p. 315.



1. (Feb., 1804.) Upon a case certified, this court can only consider the point upon which the judges below differ. Ogle v. Lee, 2 Cranch, 33.

2. (Feb., 1818.) This court has no jurisdiction of causes brought before it, upon certificate of a division of opinions of the judges of the Circuit Court for the District of Columbia. The appellate jurisdiction of this court, in respect to that court, only extends to the final judgments and decrees of the latter. Ross v. Triplett, 3 Wheat. 600.

3. (Feb., 1820.) The district judge cannot sit in the Circuit Court, in a cause brought by writ of error from the District to the Circuit Court, and the cause cannot, in such a case, be brought from the circuit to this court, upon a certificate of a division of opinion of the judges. United States v. Lancaster, 5 Wheat. 434.

4. (Feb., 1826.) Where a case is certified to this court upon a division of opinions of the judges below, and the points reserved, upon which they were divided, are too imper

fectly stated to enable this court to pronounce any opinion upon them, this court will neither award a venire de novo, nor certify any opinion to the court below upon the points reserved, but will merely certify that they are too imperfectly stated. Perkins v. Hart, 11 Wheat. 237.

5. (Jan., 1827.) This court cannot take jurisdiction of a question on which the opinion of the judges of the Circuit Court are opposed, where the division of opinion arises upon some proceeding subsequent to the decision of the cause in that court. Devereaux v. Marr, 12 Wheat. 212.

6. (Jan., 1830.) Where the point on which the judges of the Circuit Court divided in opinion was not certified, but the point of difference was to be ascertained from the whole record, the court refused to take jurisdiction of the case. Wolf v. Usher, 3 Pet. 269.

7. (Jan., 1830.) Where the whole cause, and not a point or points in the cause, has been adjourned from the Circuit Court to this court, the case will be remanded to the Circuit Court. Saunders v. Gould, 4 Pet. 392.

8. (Jan., 1832.) Mr. Chief Justice Marshall suggested that the case might be brought on if the parties would agree that it should stand as if a judgment had been given by the Circuit Court on the exceptions. The case, he said, could not be heard on a difference in opinion in the judges of the court, on a motion for a new trial. Grant v. Raymond, 6 Pet. 221.

9. (Jan., 1836.) The defendant in an action of detinue, died previous to the return-day of the term, and at the term, his death was suggested, and a scire facias was issued to his executors to a subsequent term, and the plaintiff moved the court to revive the suit against them; which motion, on argument, was overruled, and the suit abated. On a day afterwards, in the same term, the plaintiff's attorney moved the court to rescind the order refusing to revive the suit; and upon this motion the judges were opposed in opinion, whether

the action could be revived against the personal representatives of the defendant, - which division was certified to the Supreme Court. Held, that the question cannot be brought up on a certificate of division. There was not, in strictness, any cause in court. The unsurmountable objection is, that the granting or refusing the motion was a matter resting in the discretion of the court, and did not present a point that could be certified under the act of Congress. Davis v. Braden, 10 Pet. 286.

10. The questions which may be certified are those which may arise on the trial of a case, and are such as may be

presented on the final hearing of a cause, or pleas to the jurisdiction of the court. ...

16. 11. The court do not mean to decide definitively that no question can be brought here upon a certificate of a division of opinion, unless the point arose upon the trial of the cause, but are very much inclined to think that such is the true construction of the act; but, from the general words used, cases may possibly arise that we do not foresee. 16.

12. (Jan., 1836.) 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 a 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 of the 29th of April, 1802. Smith v. Vaughan, 10 Pet. 366.

13. (Jan., 1836.) Questions respecting the practice of the Circuit Court in equity causes, which depend upon the exercise of the sound discretion 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 judges of the Circuit Court, under the act of 1802, chap. 32. Packer v. Nixon, 10 Pet. 408.

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