the opinion of the court, farther proceedings can be had without prejudice to the merits: and provided also, that imprisonment shall not be allowed, nor punishment in any case be inflicted, where the judges of the said court are divided in opinion upon the question touching the said imprisonment or punishment.
The defendants, Kelly and others, were indicted in the circuit court of Pennsylvania, for feloniously endeavoring to make a revolt on the high seas, on board of a merchant vessel of the United States. They were found guilty; and their counsel moved to arrest the judgment, on the ground, “that the act of Congress does not define the offence of making a revolt, and that it was not competent to the court to give a judicial definition of a crime heretofore unknown.” The opinions of the judges of the circuit court were divided on this motion, and the same was certified to the supreme court. United States v. Kelly et al., 11 Wheat. 417; 6 Cond. Rep. 370.
An action of general indebitatus assumpsit, was brought in the circuit court of Ohio, for work, labour and services in exploring and surveying lands, showing and selling them, investigating titles, and paying taxes, &c. The plaintiff also filed an additional bill of particulars, stating other services. The jury found a verdict for the plaintiff, “if, on points reserved, the court should be of opinion that the law is for the plaintiff; if not, for the defendant.” The opinions of the judges being opposed, the cause was removed to the supreme court, upon a certificate of disagreement upon points stated, and the special verdict. The points were, that the whole evidence and certain letters, show a subsisting and open agreement at the time of action brought; that the whole evidence constituted a special agreement, &c.; that the plaintiff cannot recover on two items of the account, &c. The supreme court held the points imperfectly stated, and refused to give a certificate of their opinion. Perkins v. Hart’s Ex’r, 11 Wheat. 237; 6 Cond. Rep. 287. In this case, the judges of the circuit court of West Tennessee, after a judgment rendered in the court, divided in opinion as to the amount of the surety bond to be given by the party who applied for a writ of error: whereupon the division was certified to the supreme court. The court were of opinion, that it had no jurisdiction of the question on which the opinions of the judges of the circuit court were opposed; the division of opinion having arisen after a decision of the cause, in the court below. It was certified, accordingly, to the circuit court. Devereaux v. Marr, 12 Wheat. 212; 6 Cond. Rep. 522. In this case, an action of debt was brought in the circuit court of Rhode Island, on two bonds given, conditioned that N. H. should remain a true prisoner within the limits of the prison. The defendant pleaded a discharge from imprisonment by an act of the legislature of Rhode Island. The judges of the circuit court were opposed in opinion, as to the validity of the discharge; and the same was certified to the supreme court. Mason v. Haile, 12 Wheat. 370; 6 Cond. Rep. 535. An action was instituted in the circuit court of the United States for the southern district of New York, against the drawer, upon nine several bills of exchange, and a verdict was taken for the plaintiffs, subject to the opinion of the court, on a case agreed. The judges of the circuit court being divided in opinion upon certain points, the same was certified to the supreme court. The case stated formed a part of the record sent up to the supreme court. The supreme court directed the opinion of the court to be certified on each of the points, on which the judges of the circuit court had been divided in opinion; and which were argued before it. Schimmelpennich et al. v. Bayard et al., 1 Peters, 264. This case came before the court on a certificate of a division of opinion between the judges of the circuit court of the southern district of New York; the court having divided in opinion on a motion for execution, after a verdict against the sureties of a postmaster, for the plaintiff. The circuit court directed the questions which arose on the motion, and on which they had differed, to be certified to the supreme court. Dox et al. v. The Postmaster General, 1 Peters, 318. An action was instituted in the circuit court of Kentucky on a promissory note, by the Bank of the United States: and the defendants filed a plea, setting forth circumstances which brought up the question of usury, in the discounting of the note. The plaintiffs demurred; and the judges of the circuit court differed in opinion on the questions raised by the pleadings: 1. Whether the facts set forth in the plea, made out a case of usury. 2. Whether, if there was usury in the case, the note is invalid, so that no recovery can be had thereon. 3. Whether, if not wholly void, a part of the note can be recovered. Bank of the United States v. Owens and others, 2 Peters, 527. Action on a bill of exchange. A judgment was confessed on a case stated, subject to the opinion of the court, whether the court had jurisdiction of the suit. The judges differed in opinion, and the question on which they divided was certified to the supreme court. Buckner v. Finley and Van Lear, 2 Peters, 586. A writ of right was brought in the circuit court of the southern district of New York, and the judges of the court were opposed in opinion on questions presented in the trial of the cause, on the pleadings, and on the merits. The record contained all the pleadings, and the evidence given on the trial; and the questions on which the judges were opposed were certified to the supreme court. Inglis v. The Trustees of the Sailor’s Snug Harbor, 3 Peters, 99. The questions on which the judges of the circuit court of North Carolina were opposed in opinion, arose in an action instituted against the defendant, to recover damages for neglecting to institute a suit against the indorser of the promissory note, until after the remedy was barred by the statute of limitations. The question certified to the supreme court, arose on the finding of the jury for the plaintiff, subject to the opinion of the court, whether the statute of limitations was not a bar to the plaintiff’s action against the defendant. Wilcox et al. v. The Ex’rs of Plummer, 4 Peters, 172. On inspecting the record, it was perceived that the judges of the circuit court of Rhode Island, instead of dividing on one or more points, had divided on the whole case, and had directed the whole case to be certified to the supreme court. Considering this as irregular, the supreme court directed the cause to be remanded to the circuit court, that further proceedings may be had therein according to law. Saunders v. Gould, 4 Peters, 392. A bill was filed on the equity side of the circuit court of Virginia, and the judges were opposed in opinion on questions arising in the case, as to the appropriation and distribution of the assets of the
