THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES, AT DECEMBER TERM, 1852. ANDREW WYLIE, JR., ADMINISTRATOR OF SAMUEL BALDWIN, APPELLANT, v. RICHARD S. COXE. An appeal will not lie to this court from a refusal of the court below to open a prior decree, and grant a rehearing. The decision of this point rests entirely in the sound discretion of the court below.1 The case of Brockett v. Brockett, (2 How., 240,) explained. Two appeals having been taken, one from the original decree, and the other from the refusal to open it, the latter must be dismissed, and the case stand for hearing upon the first appeal. A motion for a mandate upon the court below, to carry the decree into execution, overruled.2 THIS was an appeal from the Circuit Court of the United States, for the District of Columbia. It was brought before the court upon the following motion : The appellee in this case moves the court to dismiss the second appeal in this record from the order of the Circuit Court, overruling a motion to open the decree and grant a rehearing. And, also, to award a writ of procedendo, commanding the said Circuit Court to proceed and execute the first decree. Dec. 22d, 1852. RICHARD S. COXE, In pro. per. Mr. Chief Justice TANEY delivered the opinion of the court. This is an appeal from the decree of the Circuit Court, for the District of Columbia. Wylie r. Coxe. The bill was filed by the appellee, to recover a sum of money *which he alleged was due to him for services *2] rendered to the appellant, as administrator, and to Baldwin, the intestate, in his lifetime, in recovering a large sum of money, which was due to the said Baldwin from the Mexican government. The case proceeded to final hearing; and, on the 28th of April, 1852, the court passed its decree, directing the appellant, as administrator, to pay to the appellee $3,750, with interest from the 16th of May, 1851, until paid. From this decree the appellant prayed an appeal to this court, and executed an appeal-bond in the usual form, in the penalty of $200. The bond is dated on the 6th of May, 1852, and on the same day was left for approval in the clerk's office, and, as appears by an indorsement upon it, was approved and filed on the 13th of the same month. On the 13th of May, 1852, the appellant filed a petition for a rehearing, and on the same day moved to open the decree. The appellee answered the petition on the 19th. And, on the 22d, the motion to open the decree and for a rehearing, was overruled by the court. And, thereupon, the appellant prayed an appeal, as well from this order as from the decree of April 28th; and on the same day executed an appeal-bond in the penalty of $7,500, which was approved by the court. The case is therefore here upon two appeals: 1st, from the final decree, directing the payment of the money; and, 2d, from the order overruling the motion to open this decree and grant a rehearing. In relation to the order, it is plain that no appeal will lie from the refusal of a motion to open the decree and grant a rehearing. The decision of such a motion rests in the sound discretion of the court below, and no appeal will lie from it. The case of Brockett v. Brockett, (2 How., 240,) which was relied on in the argument, was decided on different ground. In that case, before any appeal was taken, a petition was filed to open the decree for certain purposes, and the court referred it to a commissioner to examine and report on the matters stated in the petition. Upon his report, the court refused to open the decree, and the party thereupon appealed from this refusal, as well as the original decree, and gave bond, with sufficient security, to prosecute the appeal. This bond was given within ten days of the refusal of the motion, but was more than a month after the original decree. And the court held that this appeal was well taken; not because an appeal will lie from the refusal of a motion to Ex parte Taylor. open the decree and grant a rehearing, but because the court regarded the original decree as suspended by the action of the court on the motion, and that it was not effectual and final until the motion was overruled.1 *But in this case the decree was not suspended. It was final from its date. An appeal had been regularly [*3 taken from it, and an appeal-bond given. And the case has come up to this court upon that appeal. There is no ground, therefore, for saying, that the first decree was not final until the motion was overruled. It is now before this court upon the first appeal; and the second appeal, although it professes to be an appeal from the original decree, as well as from the subsequent order, could not act on the original decree, which was already removed; and the validity of this last appeal must rest altogether on the refusal to open and rehear. And, as an appeal will not lie from the decision of such a motion, the appeal, so far as concerns the order on the petition for a rehearing, and the refusal of the Circuit Court to grant the same, must be dismissed. The first appeal was, however, regularly taken, and the case will stand for hearing when it is reached in the regular call of the docket. And, as it is now presented by the record, we see no ground for a mandate to the Circuit Court. No application has been made to it to carry the decree into execution; or to stay proceedings in it pending this appeal. We are bound to presume that the court below will do whatever may be right in the premises, if the subject is properly brought before it. And we cannot, in advance, undertake to guide their judgment by a mandate. The motion for an order on the Circuit Court, to proceed to carry the decree into execution, is therefore overruled. EX PARTE DAVID TAYLOR. A rule will be refused for the judges of the Circuit Court of the District of Columbia to show cause why a mandamus should not issue, unless a case is presented which primâ facie requires the interposition of this court. Such a case is not presented where the Circuit Court decided that, under an act of Congress, an affidavit was sufficient to hold a party to special bail. That court had the power, by the act, to exercise its judicial discretion.2 1 See note in 2 How., 238. 2 CITED. Ex parte Bradley, 7 Wall., 366; Ex parte Railway Co., 11 Otto, 720. Mandamus lies to an inferior court to compel action, but not to direct how it shall act or control its discretion. Where the inferior court has Ex parte Taylor. The act of Congress regulated the subject, and not the statute of Maryland, passed in 1715. THIS case came before the court upon the following motion. and petition : Ex parte DAVID TAYLOR. Petition for a Mandamus to the Judges of the Circuit Court of the District of Columbia, for Washington County. The above petitioner moves the honorable the Judges of the *Supreme Court of the United States, for a rule *4] on the Judges of the Circuit Court of the District of Columbia for Washington County, to show cause why a mandamus should not issue commanding them to admit the appearance of the petitioner to a suit in said court, by Thomas Ewing, Jr., against said petitioner; and the petitioner moves for the said rule on his petition, and the transcript therewith filed. 1. Because there is no legal cause of bail set forth in the proceedings in said suit, and by the refusal of the Circuit Court to allow his appearance to be entered to said suit, he is unlawfully detained in custody by the marshal of said district. 2. Because the act of Maryland, passed in 1715, c. 46, § 3, is in force in the county of Washington, and nowise repealed; and the petitioner was by virtue of said act entitled to appear to said suit, on giving special bail in the sum of one hundred and thirty-three dollars thirty-three and a third cents. But the court refused to allow him so to appear, or to enter bail in said amount. 3. Because the petitioner has a legal right to appear without bail, or upon giving bail to the amount required by the act of 1715, c. 46, § 3, and thereby to be discharged from prison, and the said legal right does not depend on the discretion of the court, but is fixed and regulated by law, and there is other legal remedy for the petitioner in the premises. ROBERT J. BRENT, for Petitioner. already acted, its action can only be revised on appeal, writ of error, or certiorari. Appling v. Bailey, 44 Ala., 333; Ex parte South &c. R. R. Co., Id., 654; Mason County v. Minturn, 4 W. Va., 300; Burke v. Monroe County, Id., 371. S. P. Seymour v. Ely, 37 Conn., 103; Ex parte Flippin, 4 Otto, 348; Er parte Loring, Id., 418; Ex parte Schwab, 8 Id., 240; People v. Detroit Sup. Ct. Judge, 40 Mich., 169; Ex parte Denver &c. R'y Co., 11 Otto, 711; Virginia v. Rives, 10 Id., 313; People ex rel. Francis v. Common Council, 78 N. Y., 33. Ex parte Taylor. To the Judges of the Supreme Court of the United States. The petition of David Taylor respectfully showeth, that he is now confined in the jail in the city of Washington, at the suit of a certain Thomas Ewing, Jr., and he refers to the accompanying transcript of the record of said suit, and makes the same a part of this petition, for the better understanding of the proceedings under which he is now unjustly and oppressively detained in prison. Your petitioner showeth, that by said record it appears he was held to bail in said suit, upon the affidavit of said Ewing, and without a copy of the declaration being served on him, as required by the act of the legislature of Maryland of 1715, c. 46, § 3. [*5 That at the return of the writ of capias ad respondendum, issued in said cause, your petitioner moved to enter his appearance without giving special bail, because of the alleged insufficiency of the affidavit to hold to bail, but said motion. was overruled by the Circuit Court of the District of Columbia for Washington County. That, thereupon, your petitioner moved to enter his appearance to said suit, upon giving good and sufficient special bail, in the sum of one hundred and thirty-three dollars and thirty-three and one third cents, because of the omission to serve your petitioner with a copy of the declaration, according to the terms of the aforesaid act of 1715, c. 40, § 3; and your petitioner then and there tendered in open court good and sufficient bail, in the lastmentioned sum of money. The sufficiency of said bail for said amount was fully admitted by said court, as will appear by reference to said transcript of the record; but the court overruled said application upon the express ground that your petitioner was bound to enter special bail to said action, in the amount of the sum sworn to in the affidavit of said Ewing, which sum is shown in said affidavit to be four thousand nine hundred and seventy dollars. Your petitioner is advised that the aforesaid recited act of the legislature of Maryland is in full force in Washington county aforesaid; and that, under and by virtue of said law, it was the duty of the marshal to require no greater appearance-bail, and of the court to require no greater special bail than the amount specified in said act, where no copy of the declaration is sent to be served with the writ; and your petitioner is also advised, that there is in said affidavit no legal cause of bail whatever. Wherefore, inasmuch as the said Circuit Court has refused both of said applications for an appearance on the part of your petitioner to said suit, and as the law provides no other adequate rem |