About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

Elizabeth Davis, Administratix of John D. Davis v. Alexander Braden U.S. 286 (1836)

handle is hein.slavery/ussccases0101 and id is 1 raw text is: 286 SUPREME COURT. ELIZABETH' DAVIS, ADMINISTRATRIX OF JOHN H. Dkvxs v. ALEX- ANDER BRADEN. The defendant in an action of detinue died previous to-the return day of the term, ,and at the term his death was suggested, and a scire facias was issued to his exe- cutors,.to a subsequent term, and the plaintff moved the court to revive the suit against them; which motion, on argument,'was overruled, and the suit abated. On a-day afterwards, in the same termthe plaintiff's attorney moved the court to rescind the order refusing to revive the suit; and upon this motion the judges were opposed in opinion, whether the action. could'be revived against the personal representatives of the defendant; which division was certified to the supreme court. Held : that the question cannot be brought up on a certificate of division. There was pot, in strictness, any cause. in court. The insurmountable objection is, that.the granting or refusing the motion, was a matter resting in the discretion of the court, and did not present a point that could be certified under the act of con- gress. Although the words *of the act are general, tha whenever any question shall occur before a circuit court, upon which the opinion of the judges shall be opposed, the point shall be certified, &c.; yet it is very certain that this cannot embrace every question that may arise in the progress'of a cause, from its com- mencement.. There maybe many.motions made in the different stages-of a cause, before trial, that could not be brought here under a certificate of division; such as motions for amendments, for commissions, pr continuances, &c., and various- other motions that arise in the progress of a suit - which, if brought up in this manner, would occasion great delay and expense. These, and all other questions resting in the discretion of the circuit court, are not to be reviewed here. The questions which may be certified, are those which may arise on the trial of a case, and are such as may be presented upon the final hearing ofa cause, or pleas to the jurisdiF+!on of the court. The motion in the present case does not stand on stronger groX Ids than a motion for a new trial; and it has been decided in this court, in the case of the United States v. Daniel, 6 Wheat. 542, 5 Cond. Rep. 170; that a division of opinion upon, such a motion cannot be brought here by a certifil cate of a division of opinion in the circuit court; and the reason assigned is, that the granting or refusing a new trial is a mere matter of discretion; and the refusal, although the grounds of the motion be spread upon the record, is no sufficient cause for a writ of erro. The effect of the division is, that the motion is lost: so in the present case, the effect of the division of opinion isp that the motion is lost, and the plaintiff is driven to a new suit. The court do not mean to decide, definitively, that no question can be brought here .upon a certificate of a division of opinion, unless the point arose upon the trial of the cause; but are very much induced to think that such is the true construction of the act: but from the general words -used, cases may possibly arise that we do not foresee. ON a certificate of division in opinion from the circuit court of the Unittd States-for West Tennessee.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most