SECTION 697. CERTIFICATE OF DIVISION IN CRIMINAL CASES. DECISIONS 1-9. 1. (Feb., 1821.) A division of the judges of the Circuit Court, on a motion for a new trial, in a civil or a criminal case, is not such a division of opinion as is to be certified to this court for its decision, under the sixth section of the Judiciary Act of 1802, c. 291 [XXI.]. United States v. Daniel, 6 Wheat. 542. 2. (Jan., 1835.) The certificate of the judges leaves no doubt that the whole cause was submitted to the Circuit Court by the motion of the counsel of the prisoner. It has been repeatedly decided that the whole cause cannot be adjourned on a division of the judges, and this is a case of that description. United States v. Bailey, 9 Pet. 267. 3. (Jan., 1840.) In some cases where the point arising is one of importance, the judges of the Circuit Court have sometimes, by consent, certified the point to the Supreme Court, as upon a division of opinion, when in truth they both rather seriously doubted than differed about it. They must be cases sanctioned by the judgment of one of the judges of the Supreme Court in his circuit. United States v. Stone, 14 Pet. 524. 4. (Jan., 1847.) When a case is brought up to this court on a certificate of division in opinion, the point upon which the difference occurs must be distinctly stated. United States v. Briggs, 5 How. 208. 5. Where there was a demurrer upon three grounds to an indictment, it is not enough to certify, that the court was divided in opinion, whether or not the demurrer should be sustained. Ib. 6. (Dec., 1861.) The only mode of bringing a criminal case into this court is upon a certificate of the judges of the Circuit Court that their opinions are opposed upon a question raised at the trial. Ex parte Gordon, 1 Black, 503. 7. No party has a right to ask for 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 doubt enough upon the question to justify them in submitting it to the judgment of this court. Ib. 8. (Dec., 1868.) This court cannot take cognizance, under the Judiciary Act of 1802, of a division of opinion between the judges of the Circuit Court, upon a motion to quash an indictUnited States v..Rosenburgh, 7 Wall. 580. ment. 9. (Dec., 1871.) The court cannot take cognizance of a division of opinion, under the Judiciary Act of 1802, between the judges of the Circuit Court, on a motion to quash an indictment, even when the motion presents the question of the jurisdiction of the Circuit Court to try the offence charged. United States v. Rosenburgh (7 Wall. 580) recognized and followed. United States v. Avery, 13 Wall. 251. Transcripts on Appeals. SEC. 698. Upon the appeal of any cause in equity, or of admiralty and maritime jurisdiction, or of prize or no prize, a transcript of the record, as directed by law to be made, and copies of the proofs, and of such entries and papers on file as may be necessary on the hearing of the appeal, shall be transmitted to the Supreme Court: Provided, That either the court below or the Supreme Court may order any original document or other evidence to be sent up in addition to the copy of the record, or in lieu of a copy of a part thereof. And on such appeals, no new evidence shall be received in the Supreme Court, except in admiralty and prize causes. [See s. 750.] 3 March, 1803, c. 40, s. 2, v. 2, p. 244. SECTION 698. TRANSCRIPTS ON APPEALS. 1. (Aug., 1796.) If causes of equity or admiralty jurisdiction are removed hither, accompanied with a statement of facts, but without the evidence, it is well, and the statement is conclusive as to all the facts which it contains. This is unanimously the opinion of the court. If such causes are removed with a statement of the facts, and also with the evidence, still the statement is conclusive as to all the facts contained in it. This is the opinion of the court, but not unanimously. Wiscart v. Dauchy, 3 Dall. 324. 2. (Feb., 1797.) If a record is transmitted with the evidence, but without a statement of facts by the court, the evidence cannot be considered as a statement in compliance with the judicial act; and, of course, there can be no error. Jennings v. Brig Perseverance, 3 Dall. 337. 3. (Feb., 1803.) Under the Judiciary Act of 1789, in chancery cases, a statement of facts must accompany the transcript. This provision was revived by the repeal of the act of February, 1801. United States v. Hooe, 1 Cranch, 317. 4. (Feb., 1815.) If the execution of an important exhibit of the complainant's be not admitted by the defendant in his answer, who calls upon the complainant to make full proof thereof in the court below, this court will not presume that any other proof was made than appears in the transcript of the record. Drummond v. Magruder, 9 Cranch, 122. 5. (Feb., 1820.) In appeals to this court from the Circuit Courts in chancery cases, the parol testimony which is heard at the trial in the court below ought to appear in the record. Conn v. Penn, 5 Wheat. 424. 6. (Jan., 1828.) Where the record from the court below contained the whole proceedings in the case, and exhibited all the matters either party required for a final disposition of the case, and the counsel for both the appellant and the appellees were willing to submit, upon argument, the whole case to the final decision of the court, but it appeared that the Circuit Court of Ohio had not decided any question but that which had been raised upon the jurisdiction of the court, the counsel were directed by this court to argue the point of jurisdiction only. M'Donald v. Smalley, 1 Pet. 620. 7. (Dec., 1863.) Where parties are permitted by the District Court, under this act (act of June 14, 1860), to appear and contest the survey and location, the order of the court permitting such appearance and contest should be set forth in the record. Only those persons who, by such order, are made parties contestant will be heard on appeal. MILLER, SWAYNE, and DAVIS, JJ., dissenting. TANEY, C. J., and GRIER, J., absent. United States v. Estudillo, 1 Wall. 711. 8. (Dec., 1865.) Mandamus is the proper remedy, generally speaking, where the petition for appeal is improperly denied; and it is an appropriate remedy to compel the clerk, in case of refusal, to prepare and deliver the transcript; but where it is doubtful whether the remedy would be effectual, as where the proceedings had been such that the question as to pendency of the appeal itself could not well be determined without an inspection of the record, a resort to it is not obligatory. In such cases, if the suit be an appeal in a land case from the California district, in which the United States is a party, it may apply to the district attorney for a transcript; the latter, as well as the clerk, having power under an act of Congress of March 3, 1861, in such cases of appeal, to transcribe and certify the record to this court. United States v. Gomez, 3 Wall. 752. 9. (Dec., 1872.) Where, on a bill by one asserting himself to be the heir-at-law of another, the answer denies the heirship, and on an issue directed the heirship is found, and the court decrees for the complainant accordingly, no objection being made to anything that occurred, at the trial, and no application to set aside the verdict, this court will not, in the absence of the evidence given before the jury, go behind the decree of the court. Prout v. Roby, 15 Wall. 472. 10. (Oct., 1873.) Great faith given to a certificate of a clerk below (in the face of things apparent on the transcript itself, and in face of the assertion by counsel of one side, and the admission by counsel of the other), that a record sent here by him is a full, complete, true, and perfect transcript of the record and proceedings in a court below. The Rio Grande, 19 Wall. 178. 11. (Oct., 1874.) Where, on a feigned issue directed to a jury, both of the necessary facts above mentioned have been found against the assignee, and this court has not the evidence before it, it must assume that the verdict of the jury is right. Mays v. Fritton, 20 Wall. 414. 12. (Oct., 1875.) Depositions taken under a commission from a Circuit Court in an admiralty case, after an appeal to this court, will not be made a part of the record, unless a sufficient excuse be shown for not taking the evidence in the usual way before the courts below. The Juniata, 1 Otto, 366. 13. (Oct., 1875.) If such practice [of examining witnesses orally in open court, upon the hearing of cases in equity] is adopted in any case, the testimony presented in that form must be taken down, or its substance stated in writing and made part of the record, or it will be entirely disregarded here on an appeal. Blease v. Garlington, 2 Otto, 1. 14. If testimony is objected to and ruled out, it must still be sent here with the record, subject to objection, or the ruling will not be considered. A case will not be sent back to have the rejected testimony taken, even though this court might, on examination, be of opinion that the objection ought not to have been sustained. Ib. 15. (Oct., 1875.) This case involves only disputed questions of fact. It was heard here upon the pleadings, proofs, and the findings of the jury, in response to the issues sent down to be tried at law. Held, that issues of the kind are properly directed, where such questions are involved in great doubt by conflicting or insufficient evidence. Held, further, that such findings are regarded as influential in an appellate court, but they are not conclusive. Garsed v. Beall, 2 Otto, |