judge cannot set in the circuit court on the hearing of the cause, where the division certified is between them. United States v. Lancaster, 5 Wh., 434. Where it is evident from the record, that the whole case has been sent up to the Supreme Court upon a certificate of division, the case will be dismissed for want of jurisdiction. Nesmith v. Sheldon, 6 How., 41. Nor will the Supreme Court entertain jurisdiction of a case in chancery brought up on a certificate of division of opinion, which states that the court was not able to agree in opinion as to which party was entitled to a decree, one being favorable to the complainant, and the other to the defendant. Sadler v. Hoover, 7 How., 646; or, of mixed questions of law and fact, United States v. City Bank, 19 Id., 385; Daniels v. Railroad Co., 3 Wall., 250; Silliman v. Hudson River & C. Co., 1 Black, 582. Nor will the Supreme Court take jurisdiction of a case divided into points, pro forma, and certified without any actual division of opinion. Webster v. Cooper, 10 How., 54; Ex parte Gordon, 1 Black, 503; United States v. Stone, 14 Pet., 524. Nor will the court entertain a case certified, upon a division on a question of practice, in regard to which the court below had discriminating powers. Wiggins v. Gray, 24 How., 303; Smith v. Vaughn, 10 Pet., 366; Packer v. Nixon, Id., 411; Davis v. Braden, 10 Id., 288. The power of the Supreme Court in such cases is strictly confined to questions presented by the certificate. Ward v. Chamberlain, 2 Black, 430. It must be a question of law and not of fact. Dennistoun v. Stewart, 17 How., 565; Kennedy v. Bank, 8 Id., 610.

And it must distinctly appear on the record, that a question arose concerning which there was a division of opinion, and although it comes up on a preliminary motion it will be entertained, if it involves the merits of the whole case; and there may be several questions presented if they appear to have arisen at one time, and to have involved substantially but one point. United States v. Chicago, 7 How., 185; Leland v. Wilkinson, 10 Pet., 294.

But it is otherwise if they are several in number and apply to different steps of the trial, and relate to independant points. United States v. Baily, 9 Pet., 267; Nesmith v. Sheldon, 6 How., 43; White v. Turk, 12 Pet., 238; United States v. Stone, 14 Id., 524; Saunders v. Gould, 4 Id., 392; Grant v. Raymond, 6 Id., 218.

SEC. 694. Cases pending in Supreme Court from middle and northern districts of Alabama.-Nothing in the act of March three, eighteen hundred and seventy-three, relating to the circuit and district courts for the middle and northern districts of Alabama, shall affect the jurisdiction of the Supreme Court to hear and determine any cause or proceeding pending in said court at the date of said act on writ of error or appeal from the district courts of either of said districts. 3 Mar., 1873, c. 223, s. 3, v. 17, p. 485.

SEC. 695. Appeals in prize causes.-An appeal shall be allowed to the Supreme Court from all final decrees of any

district court in prize causes, where the matter in dispute, exclusive of costs, exceeds the sum or value of five thousand dollars; and shall be allowed, without reference to the value of the matter in dispute, on the certificate of the district judge that the adjudication involves a question of general importance. And the Supreme Court shall receive, hear, and determine such appeals and shall always be open for the entry thereof. [See § 1009.]

30 June, 1864, c. 174, s. 13, v. 13, p. 310; 3 Mar., 1803, c. 40, s..2, v. 2, p. 244. The Supreme Court cannot acquire jurisdiction of a cause through an order of the circuit court directing its transfer to the Supreme Court, though authorized by an act of congress, as such a provision is in violation of the Constitution; there must be a judgment, decree or order of the circuit court from which to appeal. The Alicia, 7 Wall., 571.

But a decree in a prize case, which disposes of the whole matter in controversy, upon a claim filed by particular parties, which is final as to them as claimants, and as to the United States, and which leaves nothing to be litigated and awards execution in favor of the libellants against the claimants is final, and appeal may be taken therefrom. Withenbury v. United States, 5 Wall., 819. See, also, The Admiral, 3 Wall., 603; The Florida, 101 U. S., 37; United States v. Ames, 99 U. S., 35.

SEC. 696. Appeals in prize causes remaining in circuit courts.-An appeal shall be allowed to the Supreme Court from all final decrees of any circuit court in prize causes depending therein on the thirtieth day of June, eighteen hundred and sixty-four, in the same manner, and subject to the same conditions as appeals in prize causes from the district

courts.

30 June, 1864, c. 174, s. 13, v. 13, p. 310.

SEC. 697. Points certified on division of opinon in a circuit court.-When any question occurs on the hearing or trial of any criminal proceeding before a circuit court, upon which the judges are divided in opinion, and the point upon which they disagree is certified to the Supreme Court according to law, such point shall be finally decided by the Supreme Court; and its decision and order in the premises shall be remitted to such circuit court, and be there entered of record,

and shall have effect according to the nature of the said judgement and order. [See § 651.]

29 April, 1802, c. 31, s. 6, v. 2, p. 159.

In criminal cases no jurisdiction.-The only cognizance which the Supreme Court has, in criminal cases, is on the certificate of division of judges in opinion. Hence, it has no jurisdiction on appeal from a decree of a fine for contempt of court, as that is a judgment in a criminal case. New Orleans v. Steamship Co., 20 Wall., 387; Ex parte Kearney, 7 Wh., 41; Freeman v. Howe, 24 How., 450; Buck v. Colbath, 3 Wall., 334.

Nor has the court jurisdiction in the case of a certified division of opinion on a motion to quash an indictment. United States v. Rosenburgh, 7 Wall., 580. But, see United States v. Wilson, 7 Pet., 150; Same v. Reid, 12 How., 361. Not even when the motion presents the question of the jurisdiction of the court to try the offense charged. United States v. Avery, 13 Wall., 251. And where there was a certificate of division of opinion on a demurrer to an indictment, which contained three grounds of objection, it was held not sufficient as to the point upon which the difference occurred. United States v. Briggs, 5 How., 208; United States v. Bradley, 9 Pet., 272; Adams v. Jones, 12 Id., 213. Nor can the whole cause be certified on a division of opinion. United States v. Bailey, 9 Pet., 267. Nor has the court jurisdiction when the division of opinion was on a motion for a new trial, United States v. Daniel, 6 Wh., 542. But on a motion in arrest of judgment, a certified division of opinion was entertained in the Supreme Court. United States v. Tyler, 7 Cr., 284.

On a certificate of division of opinion from a circuit court, where the Supreme Court is equally divided in opinion, the case will be remitted to the court below for the purpose of such action as such court may be advised to take. Hannauer v. Woodruff, 10 Wall., 482; Siliman v. The Hudson River Bridge Co., 1 Black, 582.

SEC. 698. Transcripts on appeals.-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 § 750.]

3 Mar., 1803, c. 40, s. 2, v. 2, p. 244; 26 Feb., 1853, c. 80, s. 1, v. 10, p. 163; 30 June, 1864, c. 174, s. 13, v. 13, p. 310.

Excuse for failure to file transcript.-Where the appellant has been prevented by the fraud of the other party from seasonably obtaining a transcript, or by the ill-founded order of the court below, or by the contumacy of the clerk, the rule will not apply requiring a transcript of the record to be filed and the case docketed at the next term succeeding the appeal. United States v. Gomez, 3 Wall., 752; United States v. Booth, 21 How., 512.

When a cause will not be dismissed.-Where a court, having no jurisdiction of a case, gives judgments for either party, or improperly decrees affirmative relief to a claimant, the Supreme Court will reverse it and not dismiss the suit. United States v. Huckabee, 16 Wall., 114; McKinley v. Morrish, 21 How., 346.

Time and mode of appeal.-As to the time and mode of appeal and practice, see United States v. Hodge, 3 How., 534; Villabolos v. United States, 6 How., 81. The appellant must prosecute his appeal to the next succeeding term of the Supreme Court, and whenever an appeal is taken by entering it in the clerk's office, the adverse party must be cited to appear at that time. United States v. Curry, 6 How., 106.

The transcript must be filed in this court and the case docketed at the term next succeeding the appeal, in order to give the court jurisdiction. If not, the case will be dismissed; but this will not prevent appellant from prosecuting another appeal, within five years, provided the transcript is filed and the case docketed in the Supreme Court at the term next succeeding the date of such second appeal. Steamer Virginia v. West, 19 How., 182; Villabolos v. United States, 6 Id., 81; United States v. Curry, 6 Id., 106; Mesa v. United States, 2 Blatch., 721.

Transcript-authentication, etc.-The transcript of the record is sufficiently authenticated if it be sealed with the seal of the court below, and signed by a deputy clerk, in the name and for his principal. Garneau v. Dozier, 100 U. S., 7. If the appeal has been taken in the name of a firm, and the record shows who are the members of it, it may be amended by substituting their names under the provisions of § 1005 of the Revised Statutes. Moore v. Simonds, Id., 145.

The court will not inquire when the circuit court first obtained jurisdiction of the suit; it is sufficient if it had jurisdiction at the time the decree was rendered. Pacific Railroad v. Ketchum, 101 U. S., 289.

An appeal will not be dismissed on the ground that the decree was rendered by consent; but no errors will be considered which were in law waived by such consent. Id.; Removal Cases, 100 U. S., 457.

SEC 699. Writs of error and appeals, without reference to amount.-A writ of error may be allowed to review any final judgment at law, and an appeal shall be allowed.

from any final decree in equity hereinafter mentioned, without regard to the sum or value in dispute:

First. Patent and copyright cases.-Any final judgment at law or final decree in equity of any circuit court, or of any district court acting as a circuit court, or of the Supreme Court of the District of Columbia, or of any Territory, in any case touching patent rights or copyrights.

8 July, 1870, c. 230, ss. 56, 107, v. 16, pp., 207, 215.

Second. Action for enforcement of any revenue law. -Any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action brought by the United States for the enforcement of any revenue law thereof. 31 May, 1844, c. 31, v. 5, p. 658.

Third. Actions against revenue officers.--Any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action against any officer of the revenue for any act done by him in the performance of his official duty, or for the recovery of any money exacted by or paid to him which shall have been paid into the treasury. 27. Mar., 1868, c. 34, s. 1, v. 15, p. 44.

Fourth. Cases on account of deprivation of rights of citizens or under the Constitution.-Any final judgment at law or final decree in equity of any circuit court, or of any district court acting as a circuit court, in any case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States.

20 April, 1871, c. 22. ss. 1, 2, v. 17, p. 13; 31 May, 1870, c. 114, ss. 16, 18, v. 16, p. 144; 9 April, 1866, c. 31, ss. 1, 3, v. 4, p. 127.

Fifth. Suits for injuries by conspirators against civil rights. Any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action brought by any person on account of injury to his person or property by any act done in furtherance of any conspiracy men