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circuit court sitting apart by direction of the presiding justice or judge, who shall designate the business to be done by each.
10 April, 1869, c. 22, s. 2, v. 16, p. 44,
Sec. 612. Circuit courts held at same time in different districts.--Circuit courts may be held at the same time in the different districts of the same circuit.
10 April, 1869, c. 22, s. 2, v. 16, p. 44.
SEC. 613. Criminal terms in the southern district of New York-how held.—The terms of the circuit court for the southern district of New York, appointed exclusively for the trial and disposal of criminal business, may be held by the circuit judge of the second judicial court and the district judges for the southern and eastern districts of New York, or any one of said three judges; and at every such term held by
said judge of said eastern district he shall receive the sum of · three hundred dollars, the same to be paid in the manner now prescribed by law for the payment of the expenses of another district judge while holding court in said district.
7 Feb., 1873, c. 120, s. 2, v. 17, p. 422.
SEC. 614. When district judges may sit in cases of appeal or error to their own decisions.-A district judge sitting in a circuit court shall not give a rote in any case of appeal or error from his own decision, but may assign the reasons for such decision: Provided, That such a cause may, by consent of parties, be heard and disposed of by him when holding a circuit court sitting alone. When he holds a circuit court with either of the other judges, the judgment or decree in such cases shall be rendered in conformity with the opinion of the presiding justice or judge.
24 Sept., 1789, c. 20, s. 4, v. 1, p. 74; 29 April, 1802, c. 31, s. 5, v. 2, p. 158; 2 Mar., 1867, c. 185, s. 2, v. 14, p. 545.
Where interest of a judge will be presumed.- Where an act of congress required two judges to constitute a circuit court, except in certain specified cases, as where he is interested, when one judge of the Supreme Court was authorized to hold it, and where the record of the case showed that both the district judge and one of the judges of the Supreme Court were actually present, but that the former did not sit in the cause, without disclosing any reason therefor, it was held that the court would presume that he was interested, and that the court had jurisdiction. Bingham v. Cabot, 3 Dal., 19 (1795).
T'he district judge of the eastern district of New York, having been designated under the act of April 2d, 1852, to hold the circuit court for the southern district of New York, and having been required under the act of February 25th, 1865, to perform the duties of a judge in said southern district had authority to hold the circuit court for said southern district. In re Alexis Nichols, 8 Blatch., C. C., 103.
Sentence by one judge.-Where a trial and conviction was had, before a circuit court, when held by both the judges thereof, it was held competent for the same court, when held by only one of the judges, to pass the sentence. U.S. v. Gordon, 5 Blatch., C. C., 18.
Sec. 615. When suits transferred from one circuit to another.—When it appears in any civil suit in any circuit court that all of the judges thereof who are competent by law to try said case are in any way, interested therein, or have been of counsel for either party, or are so related or connected with either party as to render it, in the opinion of the court, improper for them to sit in such trial, it shall be the duty of the court, on the application of either party, to cause the fact to be entered on the records, and to make an order that an authenticated copy thereof, with all the proceedings in the case, shall be forthwith certified to the most convenient circuit court in the next adjoining State or in the next adjoining circuit; and said court shall, upon the filing of such record and order with its clerk, take cognizance of and proceed to hear and determine the case, in the same inanner as if it had been rightfully and originally commenced therein; and the proper process for the due execution of the judgment or decree rendered in the cause shall run into and may be executed in the district where such judgment or decree was rendered, and also into the district from which the cause was removed.
28 Feb., 1839, c. 36, s. 8, v. 5, p. 322; 3 Mar., 1863, c. 93, s. 2, v. 12, p. .768.
Transfer of causes to a circuit in another state-practice.In the case of Supervisors v. Rogers, 7 Wall., 175, the court held that the act of February 28, 1839 (5 Stat. at Large, 322), providing for the transfer of a suit from one circuit court to the most convenient circuit court in the next adjacent State, on the application of either party, where it shall appear that both judges, or the one who is solely competent to try the case, shall be in any way interested, or shall have been counsel for, or connected with either party so as to render it improper for him to try the same, was not repealed by the act of March 3, 1863, which provides, that whenever the judge of the Supreme Court for any circuit, from disability or absence, the accumulation of business in the circuit court in any district within his circuit, or from his having been counsel, or being interested in any cause pending, or from any other cause, shall deem it advisable that the circuit court should be holden by the judge of any other circuit, he may request in writing, the judge of any other circuit to hold the court in such district during the time named in such request.
The court further held, that a court of the United States had power to adopt, in a particular case, a rule of practice under a State statute; and that where a circuit court is possessed of a case from the circuit of another State, under the act of 1839, it may adopt the practice of the State from which the case is transferred, as fully as could the circuit court of the State in which the case was originally brought; and that the appointment of the marshal of the United States under the provisions of the statute of the latter State, as a commissioner to levy and collect a tax of a county, for the satisfaction of a judgment against it, the supervisors having refused to obey a preparatory writ of mandamus requiring it, was proper.
See, however, Rees v. City of Watertown, 19 Wall., 107; where the appointment of the marshal as commisioner, in the foregoing case, was approved as authorized by the statute of the State, but denying the authority of the circuit court, in such cases, in the absence of State law.
Where both judges are incompetent.—Under the provisions of the act of 1839, it was held, that where both the judges of the circuit court were incompetent from interest or from having been of counsel, to set in a cause, it should be certified to the nearest circuit court, in the same circuit, competent in point of law to try the same; and that where the judge of the Supreme Court, assigned to one circuit cannot sit for either of the above reasons the case should be certified to the next nearest circuit court of another circuit. Richardson v. City of Boston, 1 Curtes, C. C., 250 (1852). See, also, Sawyer v. Oakman, 11 Blatch., C.C., 65, and Spencer v. Sapsley, supra,
Sec. 616. Cause certified back. The circuit justice, or the circuit judge of any circuit, may order any civil cause, which is certified into any court of the circuit under the provisions of the preceding section, to be certified back to the court whence it came; and then the latter shall proceed therein as if the cause had not been certified from it: Provided, That if, for any reason, it shall be improper for the judges of such court to try the cause so certified back, it shall be tried by
some other judge holding such court, pursuant to the provisions of the next section.
3 Mar., 1863, c. 93, s. 2, v. 12, p. 768; 28 Feb., 1839, c. 36, s. 8, v. 5, p. 322; 10 April, 1869, c. 22, s. 2, v. 16, p. 44.
Sec. 617. Justices may hold courts of other circuits on request.-Whenever a circuit justice deems it advisable, on account of his disability or absence, or of his having been of counsel, or being interested in any case pending in the circuit court for any district in his circuit, or of the accumulation of business therein, or for any other cause, that said court -shall be held by the justice of any other circuit, he may, in writing, request the justice of any other circuit to hold the same, during a time to be named in the request; and such re. quest shall be entered upon the journal of the circuit court so to be holder. Thereupon it shall be lawful for the justice so requested to hold such court, and to exercise within and for said district, during the time named in said request, all the powers of the justice of such circuit. 3 Mar., 1863, c. 93, s. 1, v. 12, p. 768.
SEC. 618. When no justice is allotted to a circuit.Whenever, by reason of death or resignation, no justice is allotted to a circuit, the Chief Justice of the Supreme Court may make a request as provided in the preceding section, which shall have effect in like manner until a justice is allotted to such circuit.
3 Mar., 1863, c. 93, ss. 2, 3, v. 12, p. 768.
Sec. 619. Clerks.-A clerk shall be appointed for each circuit court by the circuit judge of the circuit, except in cases otherwise provided for by law. [All the circuit courts in the United States shali have the appointment of their own clerks, the circuit and district judges concurring; in case of a disagreement between the judges, the appointment shall be made by the associate justice of the Supreme Court allotted to such circuit, except in cases otherwise specially provided for by law.] SEC. 620. Clerks in Kentucky.-In the district of Kentucky, a clerk of the circuit court shall be appointed at each place of holding the court, in the same manner and subject to the same duties and responsibilities which are or may be provided for clerks in independent districts.
24 Sept., 1789, c. 20, s. 7, v. 1, p. 76; 10 April, 1869, c. 22, s. 2, v. 16, p. 45; 2) June, 1874, c. 328, 1. 18, p. 109. 22 June, 1874, c. 401, s. 3, v. 13, p. 195. Amended by Ch. 329, June 19, 1878, p. 204.
15 May, 1862, c. 71, s. 7, v. 12, p. 387; 10 April, 1869, c. 22, s. 3, v. 16, p. 45.
Sec. 621. Clerks in North Carolina,-In the western district of North Carolina the circuit and district judges shall appoint three clerks, each of whom shall be clerks both of the circuit and district courts for said western district of North Carolina. One shall reside and keep his office at Statesville, one shall reside and keep his office at Asheville, and the third shall reside and keep his office at Greenesborough. 4 June, 1872, c. 282, s. 9, v. 17, p. 217.
Sec. 622. Clerks in western district of Virginia. In the western district of Virginia the circuit and district judges shall appoint four clerks, each of whom shall be clerks both of the circuit and district courts for said district. One of these clerks shall reside and keep his office at Lynchburg, another shall reside and keep his office at Abingdon, another shall reside and keep his office at Danville, and the fourth shall reside and keep his office at Harrisonburgh, in said district.
3 Feb., 1871, c. 35, s. 9, v. 16, p. 404.
Sec. 623. Clerks in western district of Wisconsin.In the western district of Wisconsin the circuit and district judges shall appoint two clerks, each of whom shall be clerks both of the circuit and district courts for said district. One shall reside and keep his office at Madison, and the other shall reside and keep his office at La Crosse.
29 June, 1870, c. 175, s. 9, v. 16, p. 172.
Sec. 624. Deputy clerks.-One or more deputies of any clerk of a circuit court may be appointed by such court, on the application of the clerk, and may be removed at the pleasure of judges authorized to make the appointment. In case