applied to all cases, and not attempt to decide on the circumstances of the particular case, their relation to which may prevent them from rightly appreciating. There are two governing elements contained in the statute. The first is, "the most convenient circuit court; " the second, "in the next adjacent state or circuit." It is not difficult to perceive why the alternative was given allowing a removal to a circuit court in the next adjacent circuit, instead of confining it to the next adjacent state. In admiralty appeals or writs of error from the district court, if the judge of the supreme court be interested, it would not be in accordance with our system, and scarcely decorous in itself, to remove the cause to another district in the same circuit, to be heard by another district judge; and it is possible that a circuit court might not be found in the next adjacent state, for since Kentucky was admitted into the Union there have been at all times, I think, states in which there has been no circuit court, as there is none now in Wisconsin, Iowa, Florida, Texas or California. In passing a general law to cover this whole subject, it might be proper for congress to make the power broad enough to include all cases, but it may not be fit to use this broad power except in the particular classes of cases which gave occasion to it. The leading idea of the law is, I think, proximity of place; and that circuit court which is competent to act, and nearest to the subject of the controversy, the witnesses, the parties and the court whence the removal is to take place, is the most convenient circuit court within the meaning of this act. I am not willing to enter into the nature of the particular case, or to consider the supposed superior fitness of one of these tribunals over another. It would be a difficult and not slightly invidious task to balance the advantages, real or imag inary, which the parties may conceive are to be gained or lost by resorting to one tribunal rather than another, when the law deems both equally competent. Least of all shall I attempt to do this in a case in which the law disqualifies me to sit as a judge. In my opinion, it is in conformity with the statute, and the rule should be, where the parties do not agree, that cases thus removed should go, as a matter of course, to the nearest circuit court in this circuit, unless that court is not competent, in point of law, to try them. With this view, I am of opinion this suit should be certified to the circuit court within and for the district of Rhode Island.

IN RE NICOLAS.

(Circuit Court for New York: 8 Blatchford, 102-107. 1870.)

Opinion by WOODRUFF, J.

STATEMENT OF FACTS.-The petitioner, having been tried and convicted of an offense against the laws of the United States and remanded for sentence, and being now held in jail under such remand, applies for a writ of habeas corpus, upon the allegation of illegality in such order remanding him, in this, that the circuit court at which he was tried, in this present term, was held by the Honorable Charles L. Benedict, the judge of the district court of the United States for the eastern district of New York. By section 1 of the act of July 29, 1850 (9 U. S. Stat. at Large, 442), in case of the sickness or other disability of any district judge, the circuit judge was authorized, if, in his judgment the public interests required, to designate and appoint the district judge of any other district within the circuit, to hold the district court or circuit court, in case of the sickness or absence of the circuit judge, and discharge all the duties of the district judge while such sickness or disability should continue. By the

act of April 2, 1852 (10 U. S. Stat. at Large, 5), the authority conferred by the aforesaid act was extended to any case and occasion where it should be made to appear to the circuit judge that the public interests, from the accumulation or urgency of judicial business in any district, required it to be done; and, in such case, it was made lawful for each of the said district judges separately to hold a district or circuit court at the same time, and discharge all the judicial duties of a district judge therein.

By the act of February 25, 1865 (13 U. S. Stat. at Large, 438), the eastern district of New York was created; and, by the third section, it was provided that in case of the inability on account of sickness of the district judge for the southern district to hold any court therein, it should be the duty of the judge of the eastern district to hold such court and do and perform all the acts and duties of the judge of the southern district; and that whenever from pressure of public business or other cause, it should be deemed desirable by the judge of the southern district that the judge of the eastern district perform the duties of a judge in the southern district, an order to that effect might be entered, and thereupon the judge of the eastern district should be empowered to do and perform within the southern district, and in the district court thereof, all the acts and duties of the district judge thereof. Another act may also be referred to, that the state of the law on this general subject may be exhibited. By the act of August 6, 1861 (12 U. S. Stat. at Large, 318), it was provided that in case of a vacancy in the office of district judge of any district, in a state in which there are two judicial districts, it shall be lawful for the district judge of the other district in said state to hold the district court or circuit court in case of sickness or absence of the circuit judge, and discharge all the judicial duties of the district judge so long as such vacancy shall continue.

All of these acts were passed with intent to provide for exigencies liable frequently to occur, and in which the disposal of the business in the circuit as well as the district court is hindered or prevented, or, by reason of the accumulation thereof, requires extraordinary judicial force. In pursuance of the two acts first named, Mr. Justice Nelson designated the Honorable Charles L. Benedict to hold the circuit court for the southern district of New York, in as full and ample a manner as is authorized by the said acts; and an order of the district court for the southern district was made, in pursuance of the act of February 25, 1865, requiring the said Charles L. Benedict, judge of the eastern district, to perform the duties of judge in the southern district. Under and by virtue of these acts and the designations aforesaid, the district judge, though appointed for the eastern district, becomes, pro hac vice, judge of the southern district; and under this authority Judge Benedict has performed the duties of district judge in the district and circuit courts for the southern district from time to time, when his duties in the eastern district would permit. During the early part of the present October term of the circuit court, Mr. Justice Nelson was ill and absent. For a portion of the time the circuit judge was ill, and, during the first two weeks, was not in attendance. During those two weeks the petitioner was tried, Judge Benedict holding the circuit court.

§ 13. The act of 1869 did not repeal the special legislation providing for exigencies.

The single suggestion in support of the present application is, that the act of congress (Act of April 10, 1869; 16 U. S. Stat. at Large, 44) providing for the appointment of circuit judges, and prescribing their powers and duties, has repealed or abrogated the former laws on the subject, so far as to take away

the power of the judge of the eastern district to hold the circuit court in the southern district of New York. The provision cited from the act of 1869 is, that "the circuit courts in each circuit shall be held by the justice of the supreme court allotted to the circuit, or by the circuit judge of the circuit, or by the district judge of the district, sitting alone, or by the justice of the supreme court and circuit judge, sitting together, in which case the justice of the supreme court shall preside, or, in the absence of either of them, by the other (who shall preside), and the district judge." If the suggestion urged be true, then that act has, more clearly, had a sweeping effect through all the other districts throughout the United States, where the provisions of the act creating the eastern district have no operation; and, in none of the exigencies contemplated by the statutes referred to, can a district judge hold a circuit court without the district for which he was appointed, notwithstanding vacancies, or sickness, or absence of either or all of the judges of the circuit.

I do not think such was the intention of the law, nor its effect. Its just construction, in view of the previous legislation, and of the object of the enactment of the new statute, does not require such a result. The purpose was to provide for the appointment of circuit judges, and to define their powers and jurisdiction, not to repeal the special legislation which had provided for exigencies, and had secured the continuous, regular administration of justice. In respect to such exigencies the act of 1869 is wholly silent. True, the new appointments would render those exigencies less frequent; but they would be liable to occur, and the public interests would demand the continued remedy as truly as before. These special acts were to prevent great evils, and are not to be deemed repealed, unless the new statute very clearly requires such a construction. I think it does not, for two reasons: (1) The section which provides that the circuit court shall be held by the justice of the supreme court allotted to the circuit, or by the circuit judge of the circuit, or by the district judge of the district, etc., was intended to introduce the new circuit judge into his proper relation and position in the circuit, and to define the relation of the other judges to him, in connection with their joint and several relation to the circuit courts of the several districts; and the import of the word "shall," in that view, is not other or more imperative than "may" would be, had that word been used. (2) The district judge of the district, there named, indicates the officer who is clothed with the authority, and may exercise the jurisdiction and powers, and is charged with the duties, of district judge in the district, whether derived from his original appointment, or from special acts of congress then existing, and the proper order or designation which devolves on him that jurisdiction and power, and those duties. For all the purposes contemplated in the act of 1869, Judge Benedict is the district judge of the southern district, within its intent and meaning, though his appointment was made, in name, for the eastern district.

Looking at the evils guarded against by the previous legislation, the nature of the exigencies provided for, the necessity of such provision, now as heretofore, the purpose of the act of 1869, and the consequences of the construction suggested, I conclude that the power and jurisdiction of Judge Benedict to hold the circuit court and try and remand the prisoner, as he did, are not impaired by the act of 1869. The application must be denied.

25

APPLETON v. SMITH.

(Circuit Court for Arkansas: 1 Dillon, 202, 203. 1870.)

Motion to vacate and dissolve an attachment.

Opinion by MILLER, J.

This motion is made upon the ground that the writ was wrongfully issued. Upon looking into the record of the case, I find that the same motion, based upon the same legal proposition, was made at the last term of the court, and was overruled by the district judge, who at that time held the court.

§ 14. Where a motion has been overruled by a judge of the circuit court, there can be no appeal to the supreme justice afterwards holding court therein. See SS 17-21.

I have repeatedly decided in this circuit, since I was first assigued to it, that I would not sit in review of the judgments and orders of the court, made by the district judges in my absence. Where, as in the present case, the motion is made on the same grounds, and with no new state of pleadings or facts, it is nothing more than an appeal from one judge of the same court to another, and though it is my province in the supreme court to hear and determine such appeals, I have in this court no such prerogative. The district judge would have the same right to review my judgments and orders here as I would have in regard to his. It would be in the highest degree indelicate for one judge of the same court thus to review and set aside the action of his associate in his absence, and might lead to unseemly struggles to obtain a hearing before one judge in preference to the other.

I have also held, and have prescribed it for myself as a rule of conduct, that the presence of the district judge, and his consent to a review of his decision, will not vary the course to be pursued. If it were understood that in such case the order of the court would be reconsidered, the desire of the district judge to have the responsibility shared by another, and his natural reluctance to refuse his assent to a rehearing, would always enable pertinacious counsel to get his consent. For these reasons I decline to consider this motion. (Motion withdrawn.)

§ 15. District judges.-The effect of the act of congress of April 10, 1869, was to provide for the appointment of judges specially to hold the circuit courts, but not to recast the courts nor to repeal existing legislation. Hence the power of the judges of the two district courts of Missouri to sit in the circuit court of that state is not taken away by the act. In re Circuit Court for Districts of Missouri,* 1 Dill., 1.

§ 16. A district judge may hold the circuit court alone, in the absence of the justice of the supreme court, or of the circuit judge. In re Kaine,* 10 N. Y. Leg. Obs., 263.

§ 17. A district judge, holding a circuit court alone, in the absence of his associate, the justice of the supreme court, would be acting wrongly if he should in any case review or set aside the action of that superior; so held on a motion to set aside an injunction previously granted by the supreme court judge. Hussey v. Whiteley, 1 Bond, 407; 2 Fish. Pat. Cas., 124. § 18. Although upon appeals from the district court the district judge has no vote in the circuit court, he has in all other respects the powers of a member of the court, and may consequently allow appeals from its decisions. Rodd v. Heartt, 17 Wall., 354.

§ 19. Rulings of the district judge while holding circuit court are not subject to be reviewed in the same court, either by the circuit judge or circuit justice. United States v. Biebusch, 1 McC., 43.

20. Under the bankrupt act, the district judge cannot sit in the circuit court with the supreme court justice when questions are adjourned from the district court sitting in bankruptcy to the circuit court. Therefore, a question sent up to the supreme court on a certificate of division of opinion between the district judge and the supreme court justice sitting in the circuit court, is not properly before the supreme court. Nelson v. Carland, 1 How., 265.

§ 21. When a circuit court judge has granted an injunction, and subsequently a motion is made to dissolve the injunetion, and, to support this motion, the same reasons and facts are advanced as were put forward originally to oppose the granting of the injunction, the district judge before whom such motion is made will consider himself bound by the decision of the circuit judge. Hussey v. Whiteley, 1 Bond, 412.

§ 22. Circuit judges.-- A United States circuit judge may grant leave to renew a motion which has previously been denied by another judge. Robinson v. Satterlee, 3 Saw., 140.

§ 23. Act of congress (R. S. U. S., § 571) giving to certain district courts the powers of circuit courts does not thereby make them circuit courts, or authorize the judge of the circuit to sit in them. Kerrison v. Stewart, 1 Hughes, 69.

§ 24. Under the original judiciary acts, justices of the supreme court might sit as circuit judges without special commissions therefor. Stuart v. Laird,* 1 Cr., 299.

§ 25. Divided court.- On a rule to show cause why a new trial should not be granted in the federal circuit court, if the judges are divided, the motion fails; nor is this a division of opinion which can be certified to the supreme court. Lanning v. London, 4 Wash., 333.

§ 26. If, in the supreme court of the District of Columbia, the four judges are equally divided on a question, either party may have a rehearing. Washington & Georgetown R. Co. v. Board of Public Works,* 1 MacArth., 119.

§ 27. Although, on each of the principal objections relied on as showing error in the proceedings of the district court, a majority of the members of the supreme court think there is no error, yet the judgment of the district court must be reversed, if on the question of reversal the minorities unite and constitute a majority of the court. Smith v. United States, 5 Pet., 303. § 28. The court of claims has power to grant a new trial in favor of the United States, under the second section of the act of June 25, 1868, notwithstanding an appeal has been taken to the supreme court and the former judgment affirmed, and the mandate of affirmance filed in the former court. When a court, like the court of claims, is composed of five judges, and four of them hear a motion, and in conference are divided in opinion, but the majority do not order any judgment to be announced in open court based upon such equal division, and none is so announced, and afterwards a majority of the whole court remand the motion to the law docket for argument, the fact that two of the judges who heard the motion, at the time of such remanding, file their decision dismissing the motion on its merits, does not decide the question involved, nor take away the jurisdiction of the court to hear and decide the motion upon reargument. In such a case peremptory mandamus will issue, commanding the court to hear and decide the motion. Ex parte United States, 16 Wall., 699.

$29. Disqualified.- When a case comes before a court in which the judge is personally interested, he violates decorum, morality and law by remaining on the seat of justice and giving an opinion in the case. Cooper v. Galbraith, 3 Wash., 557.

§ 30. A judge who has a deposit in a bankrupt banking concern may assign his claim to another creditor and is not then disqualified to sit as judge in the case. In re Sime, 7 N. B. R., 407.

§ 31. A magistrate to whom an insolvent debtor has made a voluntary deed of trust of all his property is interested, and therefore not competent to sit as a magistrate, in the discharge of the debtor under the insolvent law of Virginia. Slacum v. Simms, 5 Cr., 367.

§ 32. The federal circuit court in the District of Columbia reversed a judgment of the mayor of Washington for the reason, among others, that he was a party in the case. Barney v. Washington City, 1 Cr. C. C., 248.

§ 33. A federal judge, interested in a suit which comes before him for trial, may order it removed to the most convenient adjacent circuit court. Spencer v. Lapsley, 20 How., 266.

§ 34. The act of 1839, section 8 (5 U. S. Stat., p. 322), providing that, when one judge of the circuit court is interested in a cause, he may have it tried in another circuit, is not repealed by act of March 3, 1863 (12 U. S. Stat., p. 768), which relates to the same general subject. Supervisors v. Rogers, 7 Wall., 175.

§ 35. A cause in the circuit court may be transferred from one circuit court to another, when it shall appear that either judge either has been of counsel or is interested in the case. Ibid.

§ 36. Personal liability.— A judge of a court of general jurisdiction who, upon certain acts of gross malpractice being brought to his notice, removes the lawyer guilty of them from his standing as an attorney at law, is not liable for such act in absence of proof that he exceeded his jurisdiction and acted with malice. Judges are not civilly liable for their official acts. Randall v. Brigham, 7 Wall., 535 (ATTORNEYS, 38-41).

§ 37. A judge of a court of superior jurisdiction is not liable to a civil action for any judicial act done within his jurisdiction, nor when such acts are in excess of his jurisdiction, unless done maliciously or corruptly. The admission and removal of attorneys are judicial acts. Ibid.; Bradley v. Fisher, 13 Wall., 336 (ATTORNEYS, §§ 56–64).