#### *Isaac Carr and wife*vs. *John F. Green, Executor of James Green, deceased, et al.*

On a bill of revivor, to carry into effect a final decree of the Court of Equity, which has been affirmed in the Court of Appeals, the defendant cannot be permitted to bring into review the merits of the case, which have been once considered and decided,

Where a ease has been heard and decided upon its merits, by the Court of Appeals, a re-hearing, or bill of review, will not be granted, upon any other ground than newly discovered evidence since the trial.

This was a petition, presented to. the Court of Appeals, in January, 1828, for a re-hearing.

The petition is as follows:

*To the Honorable, the Judges of the Court of Appeals:*

The petition of John F. Green, executor of James Green, deceased, and Benjamin Green, respectfully sheweth, That a bill was filed by the present complainants against James Green, deceased, the object of which was to obtain possession of a plantation in Georgetown District, (claimed by them under the will of William Wilson,) and to have an account of the mesne profits. The defendant demurred, because there was plain and adequate remedy at law, and because validity of the title to a freehold was peculiarly proper for the determination of a Court of Law. The Circuit Court overruled the demurrer, and without hearing argument on the merits, decreed for the complainants, ordering the defendant to deliver up the plantation, and to account for the rents and profits. This decree was confirmed by the former Appeal Court. The defendant, James Green, departed this life without complying with the terms of the decree. In December, 1824, the Court of Appeals in Equity was abolished, and its power transferred to the new Court of Appeals, established at that period by Act of the Legislature. The original suit was afterwards revived against the executor and heir at law of James Green, deceased. But previous to the hearing of the bill of revivor, the new Court of Appeals had *406determined, in a case depending on the construction of the same clause of William Wilson’s will, under which complainants claim, that the complainants were not entitled to recover. A decree has been recently pronounced, by which the former decree, and all the orders against James Green, deceased, stand revived against his executor and heir at law.

Your petitioners submit that the decree originally pronounced in this case is erroneous, in the following particulars, viz.:

*First.*Because the complainants had plain and adequate remedy at law.

*Secondly.*Because the question submitted was peculiarly cognizable by a Court of Law, and should have been submitted to the determination of that tribunal.

*Thirdly.*Because, if the Court of Equity had jurisdiction, they erred in the construction of William Wilson’s will, under which, as your petitioners would have contended, Thomas Wilson (from whom defendant’s ancestor purchased) took an estate in fee simple.

Whereupon, your petitioners pray that your Honors, representing the former Court of Appeals, will be pleased to vouchsafe a re-hearing of this cause, your petitioners submitting to pay such costs as the Court shall award, in case their complaint shall be groundless. And your petitioners will ever pray, etc.

BENTHAM & DUNKIN, *Defendants' Solicitors.*

We certify that we have perused the foregoing petition, and are of opinion that a re-hearing ought to be granted, as thereby prayed for.

J. L. PETIGRU,

B. F. DUNKIN.

*M.*King, *Esq.:*

Sir : — Be pleased to take notice that the petition in the within stated cause will be presented to their Honors, the Judges of the Court of Appeals, at their next meeting in Charleston, or as soon thereafter as counsel can be heard, *407and that a motion will then and there be made, that the prayer of the said petition be granted, which motion will be grounded upon the said petition, and upon the pleadings, proofs, and other proceedings, heretofore had in the said cause, both in its original and revived characters.

BENTHAM & DUNKIN, *Defendants’ Solicitors.*

The opinion of the Court was delivered by

Nott, J.

This case presents two questions for the consideration of this Court:

1. Whether, on a bill of revivor, to carry into eífect a final decree of the Court of Equity, which has been affirmed in the Court of Appeals, the defendant can be permitted to bring into review the merits of the case which have been once considered and determined ?

2. Whether the Court will grant a re-hearing, or bill of review, where a case has been heard and decided, upon its merits, by the Court of Appeals, upon any other ground than newly discovered evidence, since the trial. I speak of a re-hearing and bill of review, without regard to the technical distinction between them, as, in point of principle, there can be no difference in this case.

The first point has not been much insisted on by the counsel, I presume from an impression that it furnished but little hope of success. And I concur with them in opinion, that any argument which could have been used, in all probability, would have been unavailing. On that subject, therefore, I shall be satisfied with observing that the Court concur in opinion with the Chancellor, for the reasons given in the decree.

The second, if it were now a new question, might perhaps have been one of more difficulty. But when we look back upon the decisions of the Court of Appeals, and see the number of cases in which the question has been considered and decided, we do not feel authorized to sustain this motion. The Court of Appeals was established in the year 1808, and it appears that this question arose shortly after the establishment of the Court. The first case, however, which I find reported, in which the *408question is directly decided, is the case of *James Burn vs. Poaug,*3 Des., 596, which was decided in the year 1813. In that case, it is said, the Court has had occasion to consider these applications for re-hearing, and it has formed an opinion that it is not at liberty, under its present organization, after a full and final decree, to open cases for re-hearing. It would appear, from these observations, that such applications had been frequent, and had been well considered, and that the Court availed itself of that occasion to announce its final determination.

In the year 1818, the case of *Perkins and wife*vs. *Lagn and others*occurred. That was an' application for a bill of review. The Judges in that case again remark, that the Act of 1808 declares, that the decrees of the Court of Appeals shall be final and conclusive, and it would be manifestly contrary to its intentions, to allow bills of review for error on the face of them. But as that application was founded on a suggestion of newly discovered matter since the decree, of which the party could not have had the benefit in the first instance, making, as the Judges observe, a new case, the application was granted ozi that ground.

The next case, which is entitled *ex parte John R. Murrell,*was a petition by Mr. Green, his solicitor, for a re-hearing. All that appears on the minutes of the Court, is an order upon the docket, by the presiding Chancellor, (DeSaussure,) “The petition neither granted or refused, but Mr. Green left to pursue his own course, by bill of review in the Circuit Court.” A bill was filed in the Circuit Court of Georgetown, which was dismissed by Chancellor Thompson, “ because no new matter had been discovered since the rendition of the decree in the former case.” From that decree there was an appeal, and the decree simply affirmed by the Court of Appeals.

The last case, which was one of the last acts of that Court, in December, 1824, was *Blair et al.*vs. *R. G. Farr et al.,*in which the entry on the docket is, “ Refused, because it was not to ask a review of the case on newly discovered evidence, but to alter the decree on the evidence which had been before the Court and decided on.”

*409It appears, therefore, that the question has been well considered in the former Court of Appeals, and that the decisions have been uniform, from its first establishment, in the year 1808, to its final extinguishment, in the year 1824. After such a series'of decisions, we must consider the practice and the law as finally and conclusively settled. It appears to me, also, that this practice is conformable with the practice of all the Courts in England and the United States, the organization of which bears any analogy to ours.

The case of *Browder*vs. *McArthur, 7*Wheat., 58, had been remitted to the Court below, to carry into effect a decree of the Supreme Court, and upon an appeal the counsel moved for a rehearing upon the merits. The Court denied the motion, being of opinion that it was too late to grant a rehearing in a cause, after it had been remitted to the Court below to carry into effect the decree of that Court. In Virginia, it has been held that the Superior Court of Chancery cannot grant a bill of review of any matter which has been heard and decided in the Court of Appeals. 1 Hen. and M. 13, *McCall*vs. *Graham.*And in the case of *Ludlow*vs. McCartney, 4 Vin. Abr., 414, it is said, “matters already settled, or which might have been put in issue in the original cause, shall never be drawn into examination upon a bill of review.”

■And it appears, that in England, the House of Lords will not allow a bill of review, or re-hearing, after a cause has been heard and decided by them. *Bernal*vs. *Marquis of Donegal,*3 Dow’s Reports, 157 ; *Bampfield*vs. *Popham.*

If, therefore, we are to be governed by the decisions of our own Courts, or by the authority of analogous cases from abroad, we are bound to refuse this motion. If we resort to principle, we shall be led to the same conclusion. A decision of the highest tribunal of the country must necessarily constitute the law of the case decided, whatever subsequent decisions may take place. It is a rule founded on public policy, and intended to prevent the endless litigation which would otherwise necessarily ensue.

*410If we listen to the application in this case, we shall open a door for a similar application in every case which has been decided since the establishment of that Court. It is, indeed, extremely inconsistent, that the disposition of property under the same will, should depend upon the Court in which the case might happen to be tried. But it was the result of the then unfortunate organization of our Courts, and the evil was no greater than the conflicting decisions, in many other cases, depending on the same principles, many of which are known to exist, and which was one of the causes that led to the present organization of the judiciary. But it is an evil that had better be borne than to introduce a greater, and we must console ourselves with the reflection that it no longer exists.

I am of opinion that the motion must be refused, and that the decree of the Chancellor must be affirmed.

Colcock and JohnsoN, JJ., concurred.

*Motion refused.*