Samuel Packer and others v. Henry Nixon, administrator of Matthias Aspden deceased, 10 Pet. 408

Mr Justice Story delivered the'opinion of the Court. This was the case-of certificate of division of opinion from the' circuit court for the district of Pennsylvania, certified to this court under the act of congress of the 29th of April 1802, ch. 32, sec. 6. The case was formerly before this court, and the decision will be found reported under the name of Harrison and others v. Henry Nixon, in the ninth volume of Mr Peters’s Reports (p. 483, &c.).

Upon the mandate in that case being returned to the circuit court, further proceedings were had in conformity thereto; and in the Coursé of those proceedings the questions now propounded to this court upon'the certificate arose. They are as follows: 1. Whether it is necessary that an affidavit be made to the pleas in bar to the petition of John A. Brown, or to any part thereof; and if so, to what

part 1 2. Whether the rule moved for by Mr Ingersoll and Mr .Sergeant, on the 14th day of November 1835, in the following words : “ Mr Sergeant, for John Aspden of Lancashire, moves for a rule on Mrs-Poole. and Mrs Jones, and on John A. Brown, administrator of John Asp-den of London, to show, cause why they should not be required to' elect on which petition or bill they-will proceed; and to abide by the election and abandon-the other: Mr J. R.

Ingersoll, for the executor Mr Nixon, makes the same motion as Mr Sergeant:” ought to to be granted 1 We are of opinion that the questions are not of such a nature as are .contemplated to be-certified to this court, unuer the act of 1802, ch. 32. They are questions respecting the practice of the court in equity causes; and depend upon the exercise' of the sound discretion of the court, in the application of the rules which regulate' the course of equity proceedings’ to the circumstances of each particular case.

But it is to be understood, that in the present case this general discretion is subject to the former order of this court, in regard to the making of parties, ar.a other proceedings contained in the mandate; when, the cause was remanded at the last January term of this court, as stated in 9 Peters’s Rep. 540. We shall accordingly direct this opinion to be certified to the circuit court.

This cause came on -to be heard on the transcript of. the record from the circuit court of the United States for the district of Pennsylvania ; and on a certificate of division in opinion between the judges of the said circuit court upon the following questions,: viz. 1st. Whether it is necessary that'an affidavit be made to the pleas in bar to the petition of John A. Brown, or to any part thereof; and if so, to what parti 2d.

Whether the rule moved for by Mr Ingersoll and, Mr Sergeant, on the 14th day of November 1835, in the following words : “Mr Sergeant, for John Aspden of Lancashire, move's for a rule on Mrs Poole and Mrs Jones, and on John A. Brown, administrator of John Aspden of London, to show cause why they should not be required to elect on which petition or bill they will proceéd, and to abide, by the one elected and abandon the other: Mr J. R.

Ingersoll, for the executor Mr Nixon, makes the same motion as Mr Sergeant.” And these questions were argued by counsel; ou consideration whereof, it is the opinion of this court that neither of these questions is of such:a nature as are contemplated to be certified to this court under the act of the 29th of April 1802, ch. 32. That they are questions respecting the practice of the court in the application of the general rules which regulate the course of equity proceedings to the circumstances of each,particular case; and therefore this court have no jurisdiction to answer the same.

But it is to be understood, that in the . present case this general discretion is subject to the former order of this court in regard to the making of parties, and other proceedings contained in the mandate, wlietv the causé was remanded at the last January term of this court. It is therefore ordered and adjudged that this, opinion be certified to the said circuit court; and that the cause be- remanded for further proceedings.