ate as a discontinuance, but is deemed to have been pending in the State court. (Germania F. Ins. Co. v. Francis, 52 Miss. 457.) If the circuit court does not obtain jurisdiction it cannot, on remanding the cause, give a judgment for costs, and order execution thereon. (Mayor v. Cooper, 6 Wall. 247.)

§ 115. by jury.

Issues of fact, when to be tried

The trial of issues of fact in the circuit courts shall be by jury, except in cases of equity and of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, and by the next section. (Rev. Stats. sec. 648.)

Trial by jury.-The trial of issues of fact shall be by jury, except in cases of equity or admiralty and maritime jurisdiction. (Town of Lyons v. Lyons Nat. Bank, 8 Fed. Rep. 371; 19 Blatchf. 279. See Howe S. M. Co. v. Edwards, 15 Blatchf. 405.) A circuit court cannot order a peremptory nonsuit against the will of the plaintiff. (Castle v. Bullard, 23 How. 172; Elmore v. Grymes, 1 Peters, 469; D'Wolf v. Braband, 1 Peters, 476; Crane v. Morris, 6 Peters, 598; Silsby v. Foote, 1 Blatchf. 445.) Nor can it refer the case to a referee without consent of both parties. (Howe S. M. Co. v. Edwards, 15 Blatchf. 405; United States v. Rathbone, Paine, 578.)

§ 116. Issues of fact tried by the court. Issues of fact in civil cases in any circuit court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury. (Rev. Stats. sec. 649.) [See sec. 700.]

Note. This section is not repealed by the act of March 3, 1875, section three. (Phillips v. Moore, 100 U. S. 208.)

Question was discussed in Town of Lyons v. Lyons Nat. Bank, 8 Fed. Rep. 371; 19 Blatchf. 279; and section seven hundred of the Revised Statutes was enacted to carry out its provisions. (Town of Lyons v. Lyons Nat. Bank, 8 Fed. Rep. 371; 19 Blatchf. 279.) This section does not conflict with section nine hundred and fourteen, Revised Statutes, but leaves it in full force. (Wear v. Mayer, 6 Fed. Rep. 660; 2 McCrary, 172.) This section and section seven hundred, Revised Statutes, relate only to the circuit court. (Howard v. Crompton, 14 Blatch. 333.)

Waiver of jury trial.-There must be an agreement to waive a jury trial to enable the court to try an issue of fact (Morgan v. Gay, 19 Wall. 81; see Robinson v. Mut. Ben. L. Ins. Co., 16 Blatchf. 201); but parties may waive without a written stipulation, yet they must file their stipulation if they desire to secure the right of a review in the Supreme Court on any question of law arising in the trial. (Kearney's Case, 12 Wall. 275; see Town of Lyons v. Lyons Nat. Bank, 8 Fed. Rep. 371; 19 Blatchf. 279.) Then the stipulation must be in writing, and be filed with the clerk. (Kearny's Case, 12 Wall. 275.) The court has no power to order a reference and deprive defendant of his right. (Howe S. M. Co. v. Edwards, 15 Blatchf. 405.)

Findings by the court.-The findings may be general or special (Norris v. Jackson, 9 Wall. 125; Marye v. Strouse, 5 Fed. Rep. 497; 6 Sawy. 204; see Insurance Asso. v. Boon, 95 U. S. 117); and whether general or special, they have the same effect as the verdict of a jury (U. S. v. Dawson, 101 U. S. 569; Norris v. Jackson, 9 Wall. 125); and there must be a finding, either general or special, to authorize a judgment (Insurance Asso. v. Boon, 95 U. S. 117); but if the court omits to file a finding it may do so at a subsequent term. (Insurance Asso. v. Boon, 95 U. S. 117.) If a general finding includes mixed questions of law and fact, it concludes both, except so far as they may be saved by exceptions. (Norris v. Jackson, 9 Wall, 125.) All that is essential in a special finding is that it shall find the ultimate facts. (Mining Co. v. Taylor, 100 U. S. 37.) It is not a mere report of the evidence, but a statement of the ultimate facts on which the rights of the parties must be determined. (Norris v. Jackson, 9 Wall. 125)

§ 117.

Division of opinion in civil causes — Decision by presiding judge.— Whenever, in any civil suit or proceeding in a circuit court held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge, there occurs any difference of opinion between the judges as to any matter or thing to be decided, ruled or ordered by the court, the opinion of the presiding justice or judge shall prevail, and be considered the opinion of the court for the time being. (Rev. Stats. sec. 650.)

Note. No civil suit can be taken to the Supreme Court except upon final judgment and on appeal or writ of error. (Robbins v. Fireman's Fund Ins. Co., 16 Blatchf. 232. The district judge cannot sit in the circuit court in a case brought there by writ of error from the district court, and such cause cannot be brought to the Supreme Ccurt on certificate of division. (U. S. v. Lancaster, 5 Wheat. 434.) Upon the hearing in the circuit court of an appeal from a judgment of the district court, the district judge who rendered the decision appealed from, although he may, for the information of the court, assign his reasons for that decision, is prohibited from voting or taking part in the judgment of the circuit court. (United States v. Emholt, 11 Fed. Rep. 190, note.) On appeal to this court, if it finds that the judgment as rendered is correct, it may simply affirm it; but if it is reversed, all questions certified which are considered in the final determination of the case should be answered. (United States v. Reese, 92 U. S. 214.)

§ 118. Division of opinion in criminal cause- Certificate.-Whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court upon which the judges are divided in opinion, the point upon which

they disagree shall, during the same term, upon the request of either party, or of 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; but nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits. Imprisonment shall not be allowed nor punishment inflicted in any case where the judges of such court are divided in opinion upon the question touching the said imprisonment or punishment. (Rev. Stats. sec. 651. See sec. 697.)

Criminal causes.-A certificate that the judges differ in opinion is not sufficient unless it states the points on which they differ. (United States v. Bailey, 9 Peters, 267; United States v. Briggs, 5 How. 208; United States v. Ross, 3 Wheat. 600.) The Supreme Court cannot take cognizance of a division of opinion on a motion to quash an indictment (United States v. Rosenburgh, 7 Wall. 580); nor determine on a certificate of division whether or not a new trial should be granted. (United States v. Daniel, 6 Wheat. 542.) So where the jury found the value of the property, and the judges, being opposed in opinion, certified the case, the law creates the offense and defines the punishment, and no value need be found by the jury. (United States v. Tyler, 7 Cranch, 285.) The omission from the certificate of the words "upon the request of either party or their counsel" is not a fatal omission. (United States v. Harris, 106 U. S. 629.)

§ 119. Division of opinion in civil causes-Certificate.-When a final judgment or decree is entered in any civil suit or proceeding before any circuit court held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge, in the trial or hear

ing whereof any question has occurred upon which the opinions of the judges were opposed, the point upon which they so disagreed shall, during the same term, be stated under the direction of the judges and certified, and such certificate shall be entered of record. (Rev. Stats. sec. 652.) [See sec. 693.]

Civil suits-Certificate.-A certificate of division will not be granted in a civil suit where the matter in dispute does not exceed five thousand dollars. (Robbins v. Fireman's F. Ins. Co., 16 Blatchf. 232.) Although the motion under argument was addressed to the discretion of the court, yet if the questions involved the right of the matter they may be certified (U. S. v. Chicago, 7 How. 185; see instances, Hepburn v. Ellzey, 2 Cranch, 445; Grant v. Raymond, 6 Peters, 220; Luther v. Borden, 7 How. 1; Wayman v. Southard, 10 Wheat. 1); but where the division of opinion arises from some proceeding sub. sequent to the decision, it cannot be certified. (Devereaux v. Marr, 12 Wheat. 212.) The time, the process, and the manner are subject to the absolute control of Congress. (Ex parte Crane, 5 Peters, 206.) The questions which may be certified are those which arise on the trial, and such as may be presented on the final hearing or plea to the jurisdiction. (Davis v. Braden, 10 Peters, 286.) The question certified must involve a distinct legal point, and sufficient facts must be set forth to show its bearing on the rights of the parties. (Havemeyer v. Iowa Co., 3 Wall. 294.) A division on a motion within the discretion of the court does not present a point which can be certified. (Davis v. Braden, 10 Peters, 288.) So a question whether a plaintiff in ejectment may enlarge the term of the demise cannot be certified (Smith v. Vaughan, 10 Peters, 666); nor a question in any equity case relating to practice (Packer v. Nickson, 10 Peters, 410); nor has this court jurisdiction on the question of costs. (Bank of U. S. v. Green, 6 Peters, 26.) The question certified must be a question of law and not of fact. (Wilson v. Barnum, 8 How. 258; Dennistoun v. Stewart, 18 How.