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![handle is hein.slavery/ussccases0363 and id is 1 raw text is: UNITED STATES V. AVERY.
Statement of the case.
Applying this rule to the present case it is decisive. The
relator's claim for payment had not been brought to judg-
ment in the Circuit Court, nor had it been put in suit. His
application for 2 mandamus was, therefore, an original pro-
ceeding, neither necessary nor ancillary to any jurisdiction
which the court then had. For this reason it should have
been denied, and the judgment that a peremptory mandamus
should issue was erroneous.
JUDGMENT REVERSED, and the cause remanded with in-
structions to
DismISS THE PETITION FOR A MANDAMUS.
UNITED STATES V. AVERY.
1. The court cannot take cognizance of a division of opinion under the Ju-
diciary Act of 1802, between the judges of the Circuit Court on a motion
to quash an indictment, even when the motion presents the question
of the jurisdiction of the Circuit Court to try the offence charged.
2. United States v. -Rosenburgh (7 Wallace, 580), recognized and followed.
ON certificate of division in opinion between the judges
of the Circuit Court for the District of South Carolina:
Avery and others were indicted under the act of May 81st,
1870,* known as the Enforcement Act, for conspiracy, with
intent to violate the first section of that act, by unlawfully
hindering, preventing, and restraining divers males, citizens
of the United States, of African descent, from exercising
the right of voting; and the second count of the indictment
after charging this offence further charged, under the 7th
section of that act, that in the act of committing the offence
aforesaid, they murdered one Jim Williams, contrary to
the form of the statute in such case made and provided, and
against the peace and dignity of the State of South Caro-
lina. The first count charged the conspiracy without the
* 16 Stat. at Large, 140.
Dec. 1871.]](ViewImageLocal?handle=hein.slavery/ussccases0363&div=1&collection=&method=preview&ext=.png&size=3)