Caldwell, J.
The motions in this case raise the'question whether a district judge of one district, designated and appointed by the circuit judge, under section 596 of the Revised Statutes of the United States, to hold the circuit court in another district, in aid of the judge of that district, can, while holding the circuit court under such designation, with or without the consent of the parties, hear and dispose of a criminal case on error from the district court. The district judge assigned to the duty of holding the circuit court did, in fact, hear and decide this case on error. His opinion concludes in this language:
“My conclusion is that under the law the indictment was insufficient, and the conviction thereunder should be set aside, and the defendant discharged. It is so ordered, as any further prosecution would be barred by the statute of limitations.”
Neither this order, nor its equivalent, has been entered of record; and the plaintiff in error moves that such an entry be now made as of the date of the judge’s order. This motion is resisted by the district attorney, who moves that the case be set down for hearing before the circuit judge the same as if it had not been heard and decided by the district judge-who held the circuit court under the designation and appointment of the circuit judge. The section under which the district judge was designated reads as follows:
“See. 596. It shall be the duty of every circuit judge, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section five hundred and ninety-one, the district judge of any judicial district within his circuit to hold a district or circuit court in the place or in aid of any other district judge within the same circuit.”
[819] It will bo observed that the circuit judge is to designate and appoint the district judge “in the manner and with the powers provided in section live hundred and ninety-one.” Section 591 provides that, when a district judge is prevented by any disability from holding a district or circuit court in his district, a district judge of another district may be designated and appointed “to hold said courts, and to discharge all the judicial duties of the judge so disabled.” Section 592 provides that, where there is an accumulation or urgency of business in any district, the circuit justice or circuit judge—
“May designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same powers that are vested in the judge theieof; and each of the said district judges may, in case of such appointment, hold separately, at the same time, a district or circuit court in such district, and discharge all the judicial duties of a district judge therein; but no such judge shall hear appeals from the district court.”
Section 614 of the Revised Statutes provides that—
“A district judge sitting in a circuit court shall not give a vote in any ease of appeal or error from his own decision, but may assign the reasons for such decision: provided, that such a cause may, by consent of parties, be heard and disposed of by him wiien holding a circuit court sitting alone. When he holds a circuit court with either of the other judges, the judgment or decree in such cases shall be rendered in conformity with the opinion of the presiding justice or judge.”
Lt is believed these are all the statutory provisions bearing directly on Ibis question. These sections are to be taken together, and construed as if they were one law. Bo construed, the law is that the district judge of one district, appointed to hold, and holding, a circuit court in another district, is invested with the same powers that are vested by law in the judge of the district in which the court is held, and may discharge all the judicial duties of such judge in the circuit court. In holding the circuit court, he siis as a district, and not as a circuit, judge. The statute clothes him with the jurisdiction “to discharge all the judicial duties of the judge” of the district in which the court is held, and not all the judicial duties of a circuit judge. .Embarrassment may sometimes result from, the present state of the law on this subject. For instance, if the district judge of the district where the court is held and the district judge assigned to his aid sit together in the trial of a cause in the circuit court, and there is a difference of opinion between them as to any question arising in the trial of the cause, or as to what judgment shall be rendered, there is no statute declaring whoso opinion shall prevail. There is, indeed, no statute saying in terms that they shall or may sit together. Section 592 authorizes them to “hold separately, at the same time, a district or a circuit court;” and, by section 596, the assigned judge is authorized “to hold a district or circuit court in the placo or in aid” of the judge of the district. The statute declares whoso opinion shall prevail when the court is “held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge;” but no provision is made for a difference of opinion between two district judges. [820] Section 650, Rev. St. U. S. Nor is there any provision for a certificate of division of opinion between two district judges, as there is in a case of a difference of opinion between “a circuit justice and a circuit judge or a district judge, or by a circuit judge'and a district judge.” Sections 652 and 693, Rev. St. U. S.
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Caldwell, J.
The motions in this case raise the'question whether a district judge of one district, designated and appointed by the circuit judge, under section 596 of the Revised Statutes of the United States, to hold the circuit court in another district, in aid of the judge of that district, can, while holding the circuit court under such designation, with or without the consent of the parties, hear and dispose of a criminal case on error from the district court. The district judge assigned to the duty of holding the circuit court did, in fact, hear and decide this case on error. His opinion concludes in this language:
“My conclusion is that under the law the indictment was insufficient, and the conviction thereunder should be set aside, and the defendant discharged. It is so ordered, as any further prosecution would be barred by the statute of limitations.”
Neither this order, nor its equivalent, has been entered of record; and the plaintiff in error moves that such an entry be now made as of the date of the judge’s order. This motion is resisted by the district attorney, who moves that the case be set down for hearing before the circuit judge the same as if it had not been heard and decided by the district judge-who held the circuit court under the designation and appointment of the circuit judge. The section under which the district judge was designated reads as follows:
“See. 596. It shall be the duty of every circuit judge, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section five hundred and ninety-one, the district judge of any judicial district within his circuit to hold a district or circuit court in the place or in aid of any other district judge within the same circuit.”
[819] It will bo observed that the circuit judge is to designate and appoint the district judge “in the manner and with the powers provided in section live hundred and ninety-one.” Section 591 provides that, when a district judge is prevented by any disability from holding a district or circuit court in his district, a district judge of another district may be designated and appointed “to hold said courts, and to discharge all the judicial duties of the judge so disabled.” Section 592 provides that, where there is an accumulation or urgency of business in any district, the circuit justice or circuit judge—
“May designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same powers that are vested in the judge theieof; and each of the said district judges may, in case of such appointment, hold separately, at the same time, a district or circuit court in such district, and discharge all the judicial duties of a district judge therein; but no such judge shall hear appeals from the district court.”
Section 614 of the Revised Statutes provides that—
“A district judge sitting in a circuit court shall not give a vote in any ease of appeal or error from his own decision, but may assign the reasons for such decision: provided, that such a cause may, by consent of parties, be heard and disposed of by him wiien holding a circuit court sitting alone. When he holds a circuit court with either of the other judges, the judgment or decree in such cases shall be rendered in conformity with the opinion of the presiding justice or judge.”
Lt is believed these are all the statutory provisions bearing directly on Ibis question. These sections are to be taken together, and construed as if they were one law. Bo construed, the law is that the district judge of one district, appointed to hold, and holding, a circuit court in another district, is invested with the same powers that are vested by law in the judge of the district in which the court is held, and may discharge all the judicial duties of such judge in the circuit court. In holding the circuit court, he siis as a district, and not as a circuit, judge. The statute clothes him with the jurisdiction “to discharge all the judicial duties of the judge” of the district in which the court is held, and not all the judicial duties of a circuit judge. .Embarrassment may sometimes result from, the present state of the law on this subject. For instance, if the district judge of the district where the court is held and the district judge assigned to his aid sit together in the trial of a cause in the circuit court, and there is a difference of opinion between them as to any question arising in the trial of the cause, or as to what judgment shall be rendered, there is no statute declaring whoso opinion shall prevail. There is, indeed, no statute saying in terms that they shall or may sit together. Section 592 authorizes them to “hold separately, at the same time, a district or a circuit court;” and, by section 596, the assigned judge is authorized “to hold a district or circuit court in the placo or in aid” of the judge of the district. The statute declares whoso opinion shall prevail when the court is “held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge;” but no provision is made for a difference of opinion between two district judges. [820] Section 650, Rev. St. U. S. Nor is there any provision for a certificate of division of opinion between two district judges, as there is in a case of a difference of opinion between “a circuit justice and a circuit judge or a district judge, or by a circuit judge'and a district judge.” Sections 652 and 693, Rev. St. U. S.
It was early decided that a district judge could not sit in the circuit court on a writ of error from his own decision, ( U. S. v. Lancaster, 5 Wheat. 434;) and by chapter 20 of the act of the 2d of April, 1852, (10 U. S. St. 5,) embodied in section 592 of the Revised Statutes, it was enacted, in reference to judges assigned to hold court in districts other than their own, under that statute, that “no such district judge shall hear appeals from the district court.” But by the later act of March 2, 1867, (chapter 185, § 2, 14 U. S. 545,) it was provided that a cause appealed from the district to the circuit court might, by consent of parties, “be heard and disposed of by the circuit court held by the district judge,” in the absence of the associate justice' allotted to the district. This act, with some others, is incorporated in section 614 of the Revised Statutes. This act, the supreme court say, was enacted “in order to prevent failure or delay of justice.” U. S. v. Emholt, 105 U. S. 414. Under the provisions of section 614, a district judge holding the circuit court, sitting alone, may, by consent of parties, hear and decide an appeal or writ of error from his own decision. If the district judge of the district, when holding the circuit court, may hear and decide an appeal or writ of error from the district court by the consent of the parties, undoubtedly the district judge assigned to hold the circuit court in that district may do the same. The assigned judge is, as we have seen, invested with all the powers and jurisdiction of the judge of the district. This includes the power to hear and decide, by consent of parties, any cause pending in the circuit court on appeal or writ of error from the district court. It would be a singularly anomalous condition in the law if the district judge of the district, holding a circuit court, could, by consent of the parties, hear an appeal or writ of error from his own decision in the district court, and a district judge of another district, appointed to hold the same circuit court, could not, by consent of the parties, hear appeals and writs of error from the decisions of the judge of that district. There would seem to be more reason for denying the exercise of this appellate jurisdiction to the judge who decided the case in the court below than to one who had no previous knowledge of the same. The parties have a right to have their appeal or writ of error heard by the circuit justice or the circuit judge, and to have their cause continued until such a hearing can he had; but it is competent for them by consent to submit to a hearing before the district judge who tried the cause in the district court, or before a district judge assigned to hold the court “in the place or in aid of” such judge. The statute is silent as to how such consent shall be giver, or proved, but there can be but little doubt as to the proper rule. Where the record shows that the parties appeared and argued and submitted their case, it will be presumed that they did so voluntarily, and by consent. Whether that presumption is conclusive, it is not necessary in this [821] case to decide. See The Alaska, 35 Fed. Rep. 555, 557. In this ease the consent is not denied but admitted.
It is expressly stated in the agreed statement of facts that the “cause and the errors alleged were submitted” to Judge Phillips “on motion of plaintiff in error, and with the consent of the United States of America.” Let the judgment of Judge Phillips in the ease be entered of record as of the date it was made.