 But not every question or every case was eligible for a certificate of division . In United States v. Daniel ( 1821 ) , the Court held that a motion for a new trial — as authorized by the § 17 of the Judiciary Act of 1789 — could not be the subject of a certificate of division ; rather , the division would operate a rejection of the motion . Similarly , in United States v. Bailey ( 1835 ) , the Court held that the question of whether the evidence was legally sufficient to support the offense charged could not be certified . And , certificates of division began to fall into disuse as it became increasingly common for the circuit courts to sit with a single judge . As Chief Justice Marshall wrote , he did not have " the privilege of dividing the court when alone . " 
