Salmon P. Chase

“ Braden, [4] and the conclusion of the court was, that a division on a motion, to be granted or refused at the discretion of the court, does not present a point which can be certified under the act of Congress. Upon this principle, the court in that case refused to take cognizance, upon certificate, of the question, whether an action of detinue, founded upon tort, when abated by the death of the defendant, can be revived against his personal representatives. ”

“ There are other cases in which the court has taken cognizance of questions directly affecting the merits of the cause, even though arising, in form, upon motions determinable at discretion. The case of The United States v. Chicago, [6] where the question certified arose on a motion to continue a temporary injunction, granted by the district judge, until final hearing on the merits, must be regarded as one of this character. The continuance of the injunction was clearly matter of discretion with the court ”

“ In the latter case of The United States v. Reid & Clements, [7] the point of jurisdiction upon certificate was not noticed. One of the questions certified seems, however, to have been clearly cognizable here. ”