Ex parte Small , 25 Ala. 74 ( 1854 )

PER CURIAM. —

Petitioner avers, that John McLane, in February, 1854, caused a suit to be instituted against him, returnable to the Spring term, 1854, of Macon Circuit Court, for a breach of warranty in the sale of a slave, and caused the petitioner, who then was, and now is, a resident citizen of the Slate of South Carolina, to be arrested by his body; in consequence of which arrest, he was compelled, to enter into a bail bond to keep out of the common jail.

At the return term of said writ, petitioner moved to discharge the bail, on these several grounds : 1st, because the affidavit was insufficient, in failing to show the extent of damage sustained by the alleged breach of warranty; 2d, because the defendant is a non-resident of this State, and not liable to be held to bail in this State for unliquidated damages ; and, 3d, because, in such case, the clerk had no authority to make an order requiring bail.

The petitioner proved to the court that he was a non-resident ; and his motion, having been considered, was by the court overruled.

The settled rule seems to be, that the writ of mandamus will be granted only where there is a specific legal right and no other legal remedy adequate to enforce that right. — Ex parte Jones, 1 Ala. 15. In this case, the petitioner has been held to bail, and has given á bail bond in order to obtain his discharge. If, as he contends, the case is one in which bail cannot by law be required, he cannot be held liable upon his bond ; and if a liability is fixed upon him by the judgment of the court, such judgment, in the event supposed, would be erroneous, and could be reversed on appeal. If, on the other hand, the bail was properly required, he has no cause of complaint. That the court has refused to quash the bond, on motion, is no ground for resorting to this writ. It is a matter of discretion with the court, to grant the motion or put the party on his plea when proceedings shall have been instituted on the bail bond (Reynolds v. Bell, 3 Ala. 57-8); and this writ does not lie to control an inferior court in the exercise of its discretionary powers.' — Ex parte Putnam, 20 Ala. 592. So, also, in Lamar v. The Commissioners' Court of Marshall County, we said: “Mandamus, when directed to inferior tribunals, is a writ which seeks to compel action; but it does not point out, in a matter over which that court has a discretionary power, how that court shall act.” See, also, Ex parte Edward Henry, at the present term.

This case is unlike that of Barnett et al. v. The Warren Circuit Court, Hardin's Rep. 172, where the Circuit Court refused to quash a bond for security for cost and to dismiss a suit for want of a good bond. Here there is a legal remedy, or will be one in due time. In that, there was none ; for, if the defendants gained the suit, in which event they would recover their cost, they had no security for it, and, having recovered, they could not reverse their own judgment. As we have already seen, whenever the defendant is held liable on this bond, he. has liis appeal, which clearly distinguishes it from that case.

Motion denied, with costs.