Packer v. Nixon
35 U.S. 408 (1836)

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U.S. Supreme Court

Packer v. Nixon, 35 U.S. 10 Pet. 408 408 (1836)

Packer v. Nixon

35 U.S. (10 Pet.) 408

Syllabus

Questions respecting the practice of the circuit court in equity causes, which 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 such particular case are not questions which can be certified on a division of opinion of the judges of the circuit court under the Act of 1802, chap. 32.

At January term, 1835, this case was before the Court, 34 U. S. 9 Pet. 483, on an appeal, and the decree of the circuit court was reversed, without a decision on the merits, for the purpose of amending the proceedings by entering an allegation of the domicile of the testator the construction of whose will was the subject of controversy, and introducing proof in relation thereto and also to allow the introduction of other parties claiming the estate of the testator.

After the coming in of the mandate of this Court, certain other proceedings took place in the circuit court; an amended bill was filed by the original complainant containing the allegation of domicile, which was considered necessary by the Supreme Court, and numerous petitions, to be allowed to become parties, were presented by other persons.

Among these, Janet Jones, and Mary Poole, filed their bill claiming the whole estate of the testator as heirs at law and next of kin of John Aspden of London, who they aver to have been heir at law of the testator, and as such entitled to his whole estate, real and personal, under his will.

John A. Brown also filed a bill claiming the whole personal estate of the testator as the administrator of John Aspden of London.

He took out letters of administration in Pennsylvania upon the estate of John Aspden as the attorney of the children of John Aspden of London.

Henry Nixon, the defendant, filed an answer to all these bills, and subsequently, under leave to amend his answer and plead, filed an amended answer with certain pleas thereunto annexed.

Page 35 U. S. 409

In these pleas he averred certain proceedings to have taken place in the Court of Chancery and Court of Exchequer in England in which he alleged, inter alia, that Janet Jones and Mary Poole instituted those suits for the same subject matter and that John A. Brown's bill was in the same right and also for the same matter.

No affidavit was made to these pleas by the executor, as they were filed at the instance of the counsel of one of the parties in the execution of a purpose to allow all matters which were claimed as important to the full consideration and proceedings in the case to be brought forward and exhibited for the consideration of the court.

On 14 November, 1835, the counsel for Mrs. Poole and Mrs. Jones and the counsel for John A. Brown, administrator of John Aspden of London moved for a rule to show cause why the pleas in bar should not be stricken off as containing averments of matter in pais not verified by affidavit.

On the same day, the counsel for John Aspden of Lancashire moved 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 bill or petition they will proceed, and to abide by the one elected and abandon the other.

On 6 January, 1836, on the hearing of these motions, the following questions occurred upon which the opinions of the judges were opposed:

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 part?

2d. Whether the rule moved for by Mr. Ingersoll and Mr. Sergeant on 14 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 Aspden 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 one elected and abandon the other; Mr. J. R. Ingersoll, for the executor Mr. Nixon, makes the same motion as Mr. Sergeant"

ought to be granted or not.

"And the said judges being so opposed in opinion upon the questions aforesaid, the same were then and there, at the request of Mr. Ingersoll, counsel for Henry Nixon, and Mr. Sergeant, counsel for John Aspden of Lancashire, stated under the direction of the judges, and

Page 35 U. S. 410

ordered to be certified under the seal of the court to the Supreme Court at their next session to be held thereafter, to be finally decided by the said Supreme Court."

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