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Sec. 647. Removal of suits where parties claim land under titles from different States.-If, in any action commenced in a State court, where the title of land is concerned, and the parties are citizens of the same State, and the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, states to the court, aud makes affidavit, if they require it, that he claims and shall rely upon a right or title to the land under a grant from a State other than that in which the suit is pending, and produces the original grant, or an exemplification of it, except where the loss of public records shall put it out of his power, and moves that the adverse party inform the court whether he claims a right or title to the land under a grant from the State in which the suit is pending, the said adverse party shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence upon the trial; and if he gives information that he does claim under such grant, the party claiming under the grant first mentioned may, on motiou, remove the cause for trial into the next circuit court to be holden in the district where such suit is pending. If the party so removing the cause is defendant, the removal shall be made under the regulations governing removals of a canse into such court by an alien; -and neither party removing the cause shall be allowed to plead or give evidence of any other title than that stated by him as aforesaid as the ground of his claim. • 24 Sept., 1789, c. 20, s. 12, v. 1, p. 79; 3 Mar., 1875, c. 137, ss. 2, 3, v. 18, p. 471.
Where one party claimed lands under a grant from the State of New Hampshire, and the other under a grant from the State of Vermont, it was held, that the circuit court had jurisdiction, although at the time of the first grant Vermont was a part of New Hampshire. Pawlet v. Clark, 9 Cr., 292.
So the jurisdiction of the circuit court was held to extend to a case between citizens of Kentucky, claiming lands exceeding the value of five hundred dollars, under different grants, the one issued by the State of Kentucky and the other by the State of Virginia, but upon warrants issued by Virginia, and locations based thereon prior to the separation of Kentucky
. from Virginia. The court holding that it was the grant which passed the legal title to the land; and that if the controversy is founded upon conflicting grants of different States, it is a case within the jurisdiction of the federal courts, whatever may have been the equitable rights of the parties prior to the grant. Colson v. Lewis, 2 Wheat., 377.
Sec. 648. Issues of fact, when to be tried by jury. 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.
24 Sept., 1789, c. 20, s. 12, v.1, p. 79; 3 Mar., 1865, c. 86, s. 4, v. 13, p. 501.
Thexcircuit court has no authority to order a peremptory nonsuit against the will of the plaintiff; and it cannot be called upon when the case is before the jury, to decide on the nature and effect of the whole evidence introduced in support of the plaintiff's case. Crane v. Morris, 6 Pet., 598; Carver v. Jackson, 4 Id., 1; Castle o. Bullard, 23 How., 172.
Where, upon a trial of a cause in a circuit court in New York, a juror became ill and was discharged, and another one selected in his place, by order of the court, before the conclusion of the opening address of the plaintiff's counsel, it was held that as this was the practice in the New York State courts, the circuit court had a right to follow it. 'Silsbey v. Fort, 14 How., 219.
SEC. 649. 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. [See & 700.]
3 Mar., 1865, c. 86, s. 4, v. 13, p, 501.
This provision for waiving a jury and trying issues of fact by the court applies exclusively to the circuit, and it does not extend to the district courts. Blair v. Allen, 3 Dill., 101.
It seems to have been the former practice, in the absence of statutory provisions on the subject, to allow parties, by consent, to waive the trial of issues of fact by a jury, in the circuit courts of the United States, and to submit both facts and law to the court, in conformity with the practice of the State courts. Guild v. Frontin, 18 How., 135. See, also, Campell v. Boyreau, 21, Id., 223, where it was held that a general or special verdict by a jury, or consent of parties upon a case stated in the nature of a special verdict stating the facts, was necessary in order to obtain a review in the Supreme Court upon writ of error. Snydam v. Williamson, 20 How.,
432; Burr v. The Des Moines R. & Nav. Co., 1 Wall., 99; Saulet v. Shepherd, 4 Id., 502.
Where there was a trial in the circuit court without a jury it was held, on writ of error in the Supreme Court, that it was not a sufficient finding of the facts for a re-examination of the case, where the transcript contained only the evidence with the reasons for the judgment of the judge below, in which he quoted considerable portions of the evidence in order to show the grounds for the conclusions he had reached. There must be a statement of the facts found from the evidence. Insurance Co. v. Tuceed, 7 Wall., 44; Geners v. Bonnemer, Id., 565; Coddington v. Richardson, 10 Wall., 516; Norris v. Jackson, 9 Id., 125; Flanders v. Tweed, Id., 425; Dennistoun v. Stewart, 18 How., 565; United States v. City Bank, 19 Id., 385. Where the circuit court finds the facts, the Supreme Court cannot review that finding. Basset v. United States, 9 Wall., 38; Copelin v. Insurance Co., 9 Id., 461; Wilson 0. Barnum, 8 How., 258.
If the circuit court, trying the case by consent, finds generally for one side or the other, instead of making a special finding of the facts, the losing party can have no redress in the Supreme Court on error, except for the wrongful admission or rejection of evidence. Dirst v. Morris, 14 Wall., 484; Gillman v. Illinois & Miss. Tel. Co., 91 U. S., 603.
The finding of a question of law will not bind the Supreme Court; but it may be reviewed. French t. Edwards, 21 Wall., 147; Insurance Co. v. Sea, Id., 158.
And where the facts are properly found by the circuit court, and judgment given on them, the only question the Supreme Court can examine on error, is the sufficiency of the facts found to support the judgment. Jennisons v. Leonard, 21 Wall., 302.
A statement in the record that an issue was “called for trial by the court, the jury having been waived in writing," is, in the absence of anything to the contrary, conclusive that the requisite agreement was made. Fleitas v. Cockrem, 101 U. S., 301.
Sec. 650. 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
1 June, 1872, c. 255, s. 1, v. 17, p. 196.
Sec. 651. Division of opinion in criminal causes-cer. tificate.—Whenever any question occurs on the trial or hear
ing 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 predjudice 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. [See < 697.] 29 April, 1802, c. 31, s. 6, v. 2, p. 159; 1 June, 1872. c. 25, s. 1, v. 17, p. 196.
Sec. 652. 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 hearing 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. [See $ 693.]
1 June, 1872, c. 255, s. 1, v. 17, p. 196; 29 April, 1802, c. 31, s. 6, v. 2. p, 159.
Criminal.—Where there is a division in opinion the point upon which the difference occurs must be distinctly stated. Where there was a demurrer to an indictment it is not sufficient to certify that the court was divided in their opinion whether or not the demurrer should be sustained. The United States v. Briggs, 5 How., 208; Same v. Bailey, 9 Pet., 272; Adams v. Jones, 12 Pet., 213; White v. Turk, 12 Pet., 238; Harermyer . Iowa County, 3 Wall., 294.
But the whole record should not be sent up to the Supreme Court even where it is divided into points, where they are hypothetical. Nesmith v. Sheldon, 6 How., 41; The United States v. Stone, 14 Pet., 524; Luther v. Borden, 7 How., 88; Webster v. Cooper, 10 Id., 54.
The Supreme Court can acquire no jurisdiction upon a certificate of a division of opinion on questions relating to mere matters of pure discretion in the circuit court, as upon the question whether a new trial shall be granted. United States v. Daniel, 6 Wh., 542; or whether a plaintiff in ejectment shall be permitted to enlarge the term in the demise. Smith v. Vaughan, 10 Pet., 366; or any question in equity cases relating to the practice in the circuit court, and depending upon the exercise of sound discretion in the application of the rules which regulate the course of equity to the circumstances of the particular cause. Packer v. Nixon, Id., 410; or, on a motion to quash an indictment, United States v. Rosenburgh, 7 Wall., 580. See, also, Davis v. Braden, 10 Pet., 288. But see The United States v. The City of Chicago, 7 How., 185, where there is a very material right involved. The court will entertain jurisdiction when in deciding a matter of discretion a point arises which is very material and involves a right. A question of mere fact cannot be determined by the Supreme Court on a certificate of division, where it can only be determined by an examination of the evidence in the record. Brobst v. Brobst, 4 Wall., 2; and it willl dismiss such a case for want of jurisdiction. Danielv. Railroad Co., 3 Wall., 250. And where the Supreme Court are equally divided in opinion, on a certificate of division from the circuit court, the case will be remitted to the court below for such action as it may be advised to take. Hannauer v. Woodruff, 10 Id., 482.
The authority of the Supreme Court to act upon or revise the proceedings of a circuit court in a case brought up on a certificate of division of opinion is strictly confined to the question stated in the certificate; and nothing can come before the Supreme Court except such single and definite questions as shall actually arise and become the subject of disagreement in the court below. Ward v. Chamberlain, 2 Blatch., 430; Ogle v. Lee, 2 Cr., 33; Perkins v. Hart, 11 Wh., 237; Kennedy v. Georgia State Bank, 8 How., 611. See, also, Wyman v. Southard, 10 Wh., 21; Saunders v. Gould, 4 Pet., 392.
SEC. 653. Business of the circuit court for the two districts of Missouri transferred, how.-The circuit court for the eastern district of Missouri, is vested with full and complete jurisdiction to hear, determine, and dispose of, according to the usual course of judicial proceedings, all suits, causes, motions, and other matters which were pending in the circuit court of the United States in and for the districts of Missouri at the time the said circuit court for the eastern district of Missouri was created, on the eighth day of June, eighteen hundred and seventy-two, and also all other matters which have since arisen that pertain to said suits or causes, and also to make all orders and issue of all processes which said circuit court of the United States in and for the districts of Missouri might have done if it had not ceased to exist; and said circuit court for said eastern district of Missouri is vested with jurisdiction and authority to do all and singular that may in the due
• The word of in the Roll redundant.