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Ex parte William Many.

It is therefore precisely one of the cases enumerated in the 25th section of the act of 1789, in which jurisdiction is conferred upon this court, and in which the judgment of the State Court may be reviewed upon writ of error. For the construction of an act of Congress was drawn in question, and the decision of the court was against the right claimed under it, by the plaintiff in error.

As to the authority of the Superior Court of the City of New York to retain the case, and the validity or invalidity of its proceedings and judgment, after the motion to remove; that question, according to the practice of the court, will stand for hearing when the case is reached in the regular call of the docket. But the motion to dismiss, for want of jurisdiction in this court, is overruled.

Order.

On consideration of the motion, made on a prior day of the present term of this court, to dismiss this writ of error, and of the argument of counsel thereupon had, as well in support of as against the motion, it is now here ordered by the court that the said motion be, and the same is hereby, overruled.

EX PARTE WILLIAM MANY.

Where there was a blank in the record of the Circuit Court in the taxation of the

costs recovered by the plaintiff, and the judgment being affirmed by this Court, a mandate with the same blank went down to the Circuit Court; and & motion was there made to open the original judgment for the urpose of taxing the costs, which motion was refused by the court, such refusal cannot be reached by a man

damus from this court. The refusal of the court was not a ministerial act, but an exercise of judicial dis

cretion. This court could issue a. mandamus for the Circuit Court to proceed to judgment, but such a writ would not be appropriate to the present case.

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Mr. Chief Justice TANEY delivered the opinion of the court.

A motion has been made for a rule ,on the District Judge of the Massachusetts District, to show cause why he should not proceed to adjudicate and allow the petitioner's costs in an action at law in the Circuit Court. The rule is moved for upon the District Judge, because he alone was holding the Circuit Court when the decision was made which has given rise to this application.

The case is this: Many recovered a judgment in the Circuit

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Brown et al. v. Aspden et al.

Court for the District of Massachusetts against Sizer and others, for the infringement of a patent right. · 'The judgment was entered in the following words :

“ It is thereupon considered by the court, that the said Wil. liam V. Many recover against the said George W. and Henry Sizer the sum of seventeen hundred and thirty-three dollars and seventy-five cents damages and costs of suit taxed at

The judgment was rendered in 1818; and upon writ of error brought by the defendants, it was affirmed in this court at December term, 1851. The costs were not taxed in the Circuit Court before the removal, and the blank left for them remained unfilled when the judgment was affirmed. The usual mandate issued to the Circuit Court to carry the judgment into execu. tion, and the blank space for costs was necessarily left in the mandate, in order to conform to the judgment of the court below, as it appeared in the transcript transmitted to this court.

Upon the return of the case to the Circuit Court, the counsel for the plaintiff moved that his costs be taxed by the clerk as and for the October term, 1848, and that an order be made amending the record cf the judgment of the Circuit Court so as to insert therein the amount of the taxation, and that an execution on the judgment so amended be issued.

The court refused to allow the amendment to be made, and overruled the motion. And we think its judgment; whether it be correct or not, cannot be revised in the form of proceeding moved for on behalf of the plaintiff. The decision of the Circuit Court was not a mere ministerial act. It was the decision of a court of competent jurisdiction made in the exercise of judicial authority and discretion. This court might unquestionably issue a mandamus to the court below to proceed to judgment. But in this case the court has proceeded to judge ment, upon the question submitted for its decision. And whether that judgment be erroneous or not, this court has not jurisdiction to reëxamine it in a proceeding by mandamus.

The motion for a rule to show cause must therefore be overruled for want of jurisdiction.

John A. BROWN, ADMINISTRATOR or John AsPDEN, DECEASED, ET AL., APPELLANTS, v. MATHIAS ASPDEN'S ADMINISTRATORS, ET AL.

A reargument of a case decided by this court will not be granted, unless a member of the court, who concurred in the judgment, desires it; and when thut is the case, it will be ordered without waiting for the application of counsel. VOL. XIV.

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Brown et al. v. Aspden et al.

And this is so, whether the decree of the court below was affirmed by an equally

divided court or a majority; or whether the case is one at common law or chan.

cery. The rules of the English Court of Chancery have not been adopted by this court.

Those which are applicable to a court of original jurisdiction, are not appropriate to an appellate court.

This was an appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania, and was the conclusion of the case of Aspden et al. v. Nixon et al., reported in 4 How. 467.

It was affirmed by a divided court in December, 1852; and in February, 1853, a petition for a rehearing was filed by the appellants.

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Upon which petition Mr. Chief Justice TANEY delivered the opinion of the court.

A motion has been made for a rehearing in this case, and we have been referred to the practice of the English Chancery Court in support of the application. The argument presupposes that this court, in cases in equity, has adopted the rules and practice of the English chancery. But this is a mistake. The English chancery is court of original jurisdiction; and this court is sitting as an appellate tribunal. It would be impossible, from the nature and office of the two tribunals, to adopt the same rules of practice in both.

Nothing could show this more strongly than the present application. By the established rules of chancery practice, a rehearing, in the sense in which that term is used in proceedings in equity, cannot be allowed after the decree is enrolled. If the party desires it, it must be applied for before the enrolment. But no appeal will lie to the proper appellate tribunal, until after it is enrolled, either actually or by construction of law. And, consequently, the time for a rehearing must have gone by before an appeal could be taken. In the House of Lords, in England, to which the appeal lies from the Court of Chancery, a rehearing is altogether unknown. A reargument, indeed, may be ordered, if the bouse desires it, for its own satisfaction. But the chancery rules in relation to rehearings, in the technical sense of the word, are altogether inapplicable to the proceedings on the appeal.

Undoubtedly this court may and would call for a reargument, where doubts are entertained which it is supposed may be removed by further discussion at the bar. And this may be done after judgment is entered, provided the order for reargument is entered at the same term. But the role of the court is this, – that no reargument will be heard in any case after judgment is

Brown et qi: v. aspden et al.

entered, unless some member of the court who concurred in the judgment afterwards doubts the correctness of his opinion, and desires a further argument on the subject. And when that happens, the court will

, of its own accord, apprise the counsel of its wishes, and designate the points on which it desires to hear them.

There is certainly nothing in the history of the English Court of Chancery to induce this court to adopt rules in relation to rearguments, analogous to the chancery practice upon applications for a rehearing. According to the general practice of that court, one rehearing, where the application has been sanctioned by the signature of two counsel, is a matter of course. And this facility in obtaining one rehearing, has naturally led to others, and in cases of interest or difficulty, two, or even three, rehearings have sometimes been allowed, under the special leave of the court, before the decree was enrolled, and, consequently, before it could be removed to the House of Lords. The natural result of this practice is to produce some degree of carelessness in the first argument, and hesitation and indecision in the court. But the great evil is in the enormous expenses occasioned by these repeated hearings, and the delays which it produces in the de. cision, which often prove ruinous to both parties before the final decree is pronounced. Nor is the mischief confined to the particular suit in which such proceedings and delays are permitted to take place. · A multitude of others are always behind it, waiting anxiously to be heard. And the result of the practice of which we are speaking has been such that, although the court has always been filled by men of the highest order, distinguished for their learning and industry, yet the expenses and delays of the court have become a byword and reproach to the administration of justice, and Parliament has at length been compelled to interpose.

And if this court should adopt a practice analogous to that of the English chancery, we should soon find ourselves in the same predicament; and we should be hearing over again at a second term almost all the cases which we had heard and ad. judged at a former one, and upon which our own opinions would þave been definitively made up upon the first argument. We deem it safer to adhere to the rule we have heretofore acted

And no reargument will be granted in any case, unless a member of the court who concurred in the judgment desires it; and when that is the case, it will be ordered without waiting for the application of counsel.

It is true that the decree of affirmance in this court, in the case before us, was upon an equal division of the members composing the court at the time of the argument, eight being

Brown et al. v. Aspden et al.

present. But the case was fully heard, more than a week being occupied in the arguments of counsel. And when, upon conference and a full interchange of opinion, it was found that the court was divided, the case was held over until the present term, in order that each member of the body might have an ample opportunity of investigating the subject for himself. This has been done. And when the court reassembled, it was found that the opinions of each member of the tribunal was unchanged, and the decree was therefore affirmed by a divided court. Fure ther arguments would be mere waste of time, when opinions have been formed after so much argument and such deliberate examination.

Nor is the circumstance, that a decree is affirmed by a divided court, any reason for ordering a reargument before a full bench in any case. In a body as numerous as this, it must often happen, from various causes, that the bench is not full. And experience has shown, that it has rarely happened that every judge has been present every day throughout any one entire term. The case before us is certainly an important one, in its principles and in the amount in dispute. But there are many cases on the docket at every term of the court much more important in both respects. And if it is to be understood, that cases of this description are not to be finally decided without the concurrence of a majority of the whole bench, it would be an useless consumption of time to hear them in the absence of any one judge, because it would be uncertain whether a judgment could follow after the argument. And it is easy to foresce the incon. venience, delay, and expenses to which a practice of that kind would subject the parties, and the uncertainty and confusion it would produce (to the great injury of other suitors) in the order of business as it stands on the docket. of the court.

Neither is there any difference between a decreee in chancery and a judgment at law, as to its affirmance on a division of the court. In both cases, the motion is to reverse ; and if that fails, the judgment or decree necessarily stands, and must therefore be affirmed. And in most of the cases affirmed in this manner, a majority, in fact, of the judges, who act judicially upon the case, concur in the judgment. For the Circuit Court is composed of two members, and if both are on the bench, they must concur in the judgment or decree; otherwise it could not be passed, and the point would be certified by a divided court.

In every view of the subject, we see no sufficient ground for ordering a reargument, and the application is therefore re. fused.

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