A question whether a plaintiff in ejectment shall be permitted
to enlarge the term in the demise in an action of ejectment is one
within the discretion of the court to which a motion for the
purpose is submitted, and cannot be certified to the Supreme Court,
if the judges of the circuit court are decided in opinion on the
motion under the provisions of the Act of Congress of 29 April,
1802.
At April session, 1814, an action of ejectment was commenced by
the plaintiff in the Circuit Court of Pennsylvania, and after
various preparatory proceedings, on 15 October 1821, a jury having
been empanelled; by agreement of the opposite parties, the term
laid in the declaration was enlarged to seventeen years, and on 17
October, 1821, the jury found a verdict for the plaintiff, against
Vaughan and others, on which judgment
nisi was entered. At
October session, 1826, a
scire facias to revive the
original judgment against Vaughan and others was issued, and after
various pleas and demurrers, on 9 June, 1830, judgment was given
for the plaintiff.
To April session, 1834, of the same court, a writ of alias
scire facias, issued at the suit of the same plaintiff,
again to revive the original judgment against John Vaughan, Calvin
Cone, Timothy Stevens, Oliver Stevens, Joseph Stevens and John
Secor, and all other terre tenants, was returned "made known."
"And upon the plaintiff's motion for leave to enlarge the term,
and to issue a writ of
habere facias possessionem,
questions having occurred before the said circuit court, upon which
the opinions of the judges were opposed, to-wit, whether leave
should be granted to the plaintiff to enlarge the term, and to
issue the said writ; the points upon which the disagreement
happened were, during the same term, upon the plaintiff's request,
thus stated under the direction of the said judges, and certified
under the seal of the said court to the Supreme Court at their next
session, to be held hereafter, in order that it may by that court
be finally decided; the said direction of the judges, being
accompanied with this opinion, that this is a collateral
Page 35 U. S. 367
motion to amend, depending on the discretion of the court under
all the circumstances of the case, as they appear of record, or are
disclosed by affidavits, and, in their opinion, does not come
within the provisions of the act of 1802 (vol. 3, Laws United
States 482); but as the counsel of the plaintiff think otherwise,
and are desirous of taking the opinion of the Supreme Court on the
subject; the objection to certifying the point of difference will
be reserved for their consideration, and the clerk was directed to
make out the certificate accordingly."
The clerk of the circuit court, on 7 January, 1825, sent up the
following certificate, with the record.
"I certify the foregoing to be a true statement of the points
upon which the opinions of the judges of the Circuit Court of the
United States for the District of Pennsylvania, in the third
circuit, were opposed. Stated under the direction of the said
judges."
Mr. Ingersoll moved to dismiss the cause, on the ground that the
points certified from the circuit court did not come within the
provisions of the Act of Congress of 29 April, 1802.
The Court ordered it to be certified to the circuit court as the
opinion of the Court that it cannot take cognizance of the question
certified, the cause being one resting entirely in the discretion
of the circuit court, and therefore clearly not within the Act of
Congress of 29 April, 1802.
