
    Jared v. Hill.
    WHEN the judgment of a Circuit Court is reversed, and the proceedings up to a certain point are set aside at the costs of, the defendant in error, and- the cause is remanded for further proceedings; if the Circuit Court refuse to render a judgment for the costs according to the mandate, this .Court will grant a. rule to show cause why a mandamus should not issue . (Holman J. was absent.)
    
      
       The issuing of this rule to show cause, was under the appellate powers of the Court, it having no original jurisdiction in the case. Cons. 5 a. 2 s. The rule is that a Court of Appeals, as such, may award a mandamus, whenever it is an exercise of appellate jurisdiction, or necessary to enable it to exercise appellate jurisdiction. Marbury v. Madison, 1 Cranch, 175. In such cases,;the Supreme Court of the United States, with only an appellate jurisdiction, except as to ambassadors, &c., will issue writs of mandamus to the pther United States Courts: as, if a district judge refuse to enforce obedience to his sentence, United States v. Peters, 5 Cranch, 115; — or if he direct the proceedings in a cause to be finally stayed, Livingston v. Dorgenois, 7 Cranch, 577; — or order the repeal of a patent in a summary way, and refuse to record the proceedings antecedent to the rule to show cause, and to issue a scire facias to the patentee, &c. Ex parte Wood, 9 Wheat. 603. But if the issuing of the writhe an exercise of original jurisdiction, not within the constitution, that Court will not grant it: as, if it is to be directed to the secretary of state to enforce the delivery of a commission, Marbury v. Madison, supra; — or to the register of a land-office, requiring him tq enter an application for land agreeably to an act of congress, the writ having been refused by the highest State Court. M'Cluny v. Silliman, 2 Wheat. 369. Whether that Court will, in any case, direct a mandamus to a state Court, is not yet decided. — A judgment of the Court of Appeals in Virginia was reversed by the Supreme Court of the United States, and the cause remanded. The state Court refused to o-. ¡bey the mandate, and to that refusal there was a writ of error. The Supreme Court, deeming it unnecessary to express an opinion respecting its authority to issue a mandamus to a state Court, reversed the judgment on the mandate, and affirmed the judgment of the district Court of the state, which had been reversed by the appellate Court. Martin v. Hunter's lessee, 1 Wheat. 304. In commenting on the case last cited, Chancellor Kent expresses his opinion, that the Court might have there issued the writ. He says, that if the appellate jurisdiction be founded, as it no doubt was in that case, on a solid basis, it would seem to carry with it, as of course, all the coercive power incident to every such jurisdiction, and requisite to support it. 1 Kent’s Comm. 301. When the judges of the Circuit Court of the United Stales differ in opinion as tto the execution of the mandate, the point is certified to the Supreme Court for decision, as in other cases. Skillern's Ex’rs v. May's Ex’rs, 6 Cranch, 267. —The Antelope, 11 Wheat. 413. If the mandate he executed in a manner different from its directions, the usual remedy is an appeal, or writ of error, according to the nature of the case, Himely v. Rose, 5 Cranch, 313. — Dunlop v. Hepburn, 3 Wheat. 231. — Campbell v. Pratt, 5 Wheat. 429. In such cases, only the proceedings subsequent to the mandate are brought up, and there is no inquiry into the merits of the original determination. Himely v. Rose, supra. — Browder v. M'Arthur, 7 Wheat. 58. But the original proceedings are always before the Court, so far as is necessary to determine any new points in controversy, not terminated by the original decision. The Sania Maria, 19 Wheat. 442.
    
     