
    MEDWAY’S CASE.
    Louisa C. Medway, ex parte.
    
      On the claimant's motion for Mandamus.
    
    
      The claimant brings her suit under the Abandoned or captured property Act for the proceeds in the Treasury of cotton captured, at Wilmington. The court below finds, as matter of fact, that she owned the cotton, that it was captured, that the proceeds are in the Treasury, but neglects to find the amount. Judgment against the claimant on the ground of her disloyalty. - She appeals. The Supreme Gourtreverses the judgment and remands the ease “for further proceedings in conformity to law and justice.” The claimant moves the court beloio to “find only the amount of damages omitted from the former findings and enter judgment upon the original findings with that ad-clition.” The court refuses, and orders that “the original findings be set aside and a new trial had de novo on the merits, as in their opinion law and justice require.” The claimant comes into the /Supreme Court and asks for a mandamus.
    
      Semble, where the Supreme Court reverses a judgment (rendered against a claimant on the ground of disloyalty) and remands the case “ for further proceedings in conformity to law and justice,” the Court of Claims may set aside the original findings of fact and order a trial de novo, although the original findings contain all the elements for a judgment except the amount, and require merely an assessment of the damages.
    
      The Reporters' statement of the case:
    The following are the papers on which the application for a mandamus was considered and refused by the Supreme Court:
    United States oe America, District of Golunibia:
    
    I, Thomas Wilson, being duly sworn, depose and say that I, as attorney for Louise 0. Medway, plaintiff, filed a petition in the Court of Claims for the recovery, under the Abandoned and captured property Acts, of the proceeds of a certain number of bales of cotton, of which she was the owner, seized at Wilmington, North Carolina, sold in New York, the proceeds of which were then in the Treasury of the United States; that a trial was had, and, on the first day of June, 1871, that court made and filed its findings of facts in said cause, the first paragraph of which was as follows:
    
      u The claimant was the owner of 19 bales of sea-island and 75 bales of upland cotton, captured by the United States military forces at Wilmington, North Carolina, in February, I860. The cotton so captured was turned over to the Treasury agent at Wilmington, and was sold in New York in August, 1865. The net proceeds thereof are in the Treasury.”
    Upon the trial of said cause, the plaintiff made certain re-quests of the court to find certain facts, among others the following :
    “5. That the average net proceeds of said cotton was $133.74 per bale in currency, and the whole amount of proceeds of said 130 bales is $17,386.20.”
    But the court failed and neglected to find the amount of said proceeds. Judgment was rendered against the plaintiff, who thereupon appealed to the Supreme Court.
    
      The Supreme Court reversed the judgment and remanded said cause to the Court of Claims for further proceedings in conformity to law and justice ; all of which proceedings will more fully and at large appear by reference to the record in said cause, on file in the Supreme Court, under the number 155, October term, 1873.
    On the 9th day of December, 1873, the plaintiff filed this mandate in the Court of Claims, and moved that court to proceed with the case from the point reached by the reversal, which she alleged to be in conformity with law and justice; but the said court and the judges thereof refused and still refuse to so proceed, and, upon the contrary, ordered that all the findings of fact originally made and filed, and upon which the case had been tried and decided in the Supreme Court, should be set aside and held for naught, and that a trial be had de novo.
    
    All of which will more fully and at large appear by the copy hereto attached of the record of journal-entries made in said court, including and subsequent to the filing of the mandate of the Supreme Court.
    The Court of Claims did not order a new trial under the provisions of section 2 of the Agí June 25, 1868.
    The defendant made a motion for rehearing, which was denied.
    THOMAS WILSON.
    Subscribed and sworn to before me this 7th day of April, 1875.
    [seal.] A. J. FALLS, m P.
    
    
      Transcript of record or journal-entries of Court of Claims.
    
    Washington, Wednesday, December 3, 1873.
    The court met according to adjournment.
    Present, Charles D. Drake, Chief- Justice $ Edward G-. Loring and Samuel Milligan, judges. \>
    
    .* # # # # #
    Louise C. Medway v. The United States. — 3055.
    Mr. Wilson filed the mandate of the Supreme Court herein, reversing the judgment of this court, and it was ordered that the case be placed on the January trial-docket.
    
      WASHINGTON, Wednesday, January 27, 1875.
    * # & & & %
    
    Louise 0. Medway v. The United States. — 3055.
    Mr. Assistant Attorney-General Goforth filed motion for rehearing in this case.
    Washington, Monday, February 1,1875. ******
    Louise C. Medway v. The United States. — 3055.
    The motion for a rehearing of this case was argued by Mr. Johnston, for the defendants, for the motion, and Mr. Wilson opposed and submitted.
    Washington, Thursday, February 4, 1875. ******
    Louise 0. Medway v. The United States. — 3055.
    The motion for a rehearing in this case was overruled.
    Washington, Thursday, February 11,1875.
    * * * *. * *
    Louise C. Medway v. The United States. — 3055.
    This case was argued by Mr. Wilson for the claimant, and Mr. Johnston for the defendants, and submitted. Mr. Assistant Attorney-General Goforth filed request for the court to file findings of fact.
    Washington, Monday, April 5,1875.
    * * *“ * * *
    Louise C. Medway v. The United States. — 3055.
    Whereas, on a hearing of this case upon its merits, this court, on the 1st day of June, 1871, filed findings of fact, wherein the claimant’s damages, if any, were not found and set forth, and thereupon adjudged and decreed that the claimant take nothing by her suit, and that her petition be dismissed, from which judgment and decree the claimant took an appeal to the Supreme Court, which was duly allowed and entered in said court ;
    And whereas, on the 17th day of November, 1873, the Supreme Court ordered and adjudged that said judgment be reversed and chat the cause be remanded to this court for further proceedings in conformity to law and justice, and on the 9th day of December, 1873, the mandate of the Supreme Court therein was filed herein j the case coming again before the court for hearing, the petitioner moved that the court find only the amount of damages omitted from the former findings, and thereafter enter judgment upon the original findings with that addition thereto:
    And now the court, after due consideration, refuses to grant the petitioner’s request, and orders that said original findings be set aside and a new trial had de novo on the merits, as in their opinion law and justice require.
    Filed 12 April, 1S75.
    True copy: Test.
    [seal.] D. W. MIDDLETON,
    
      Clerk Supreme Goicrt United States.
    
    Supreme Court of the United States, October term, 1874.
    Ex paeté Louise 0. Medway, petitioner. — No. 9. — Original.
    On consideration of the petition filed in this cause by Mr. Thomas Wilson, it is now here ordered, that the judges of the Court of Claims show cause, on Friday, April 23, A. D. 1875, why a writ of mandamus should not be issued to said court to compel it to vacate its order of April 5,1875 ; and that it proceed, in obedience to the mandate of this court, and in conformity to law’and justice, in the case depending in said Court of Claims wherein Louise C. Medway is claimant and the United States defendant.
    AritiL 19, 1875.
    I, D. W. Middleton, clerk of the Supreme Court of the United States, hereby certify that the foregoing is a true copy of the order of said Supreme Court entered in the above-entitled cause, as the same remains upon the official records of said Supreme Court.
    In testimony whereof I hereunto subscribe my name and affix the seal of said Supreme Court this 19th day of April, A. D. 1S75. '
    [seal.] D. W. MIDDLETON,
    
      Clerk Supreme Oourt United States.
    
    (Indorsed:) Supreme Court United States. October term, 1874. No. 9. Original. JSxparte Louise 0. Medway. Buie to show cause, &c.
    
      Ex parte Louise 0. Medway — No. 9. — Original.
    
      To the Supreme Gourt of the United States:
    
    la answer to the rule made by the Supreme Court of the United States in the above case, requiring the judges of the Court of Claims to show cause why a writ of mandamus should not be issued to said Court of Claims to compel it to vacate its order of April 5,1875, and to proceed, in obedience to tlie'man-date of the Supreme Gourt, and in conformity to law and justice, in the case depending in said Court of Claims wherein Louise 0. Medway is claimant and the United States are defendants, the chief-justice and two of the judges, being a majority of said Court of Claims, now come and respectfully submit to the Supreme Court the following statement of facts connected with the action of the Court of Claims in the said case of Louise C. Medivay v. The United States since the reversal by the Supreme Court of the judgment therein rendered :
    On the 9th of December, 1873, Thomas Wilson, esq., filed in the Court of Claims the mandate of the Supreme Court reversing the judgment of the Court of Claims in said case of Louise C. Medway, and it was ordered that said case should be placed on the trial-docket.
    On the 5th of February, 1874, the said case was argued and submitted to the court on the printed evidence and briefs of the parties.
    At that time the following rule was in force in said court:
    “ XXXVIL — Findings oe pacts.
    “In cases where a finding of facts by the court is required by the rule of the Supreme Court, ejther party desiring the same to be made shall, before or at the time of the submission of the cause, file a request that the court make such a finding.
    “ If neither party'make such a request, it will be considered that a finding is not desired, and none will be made.
    “ When such a request is made, the court, before proceeding to decide the cause, will file its finding of facts; and the date of the filing thereof shall be entered by the clerk in a separate book to be kept in his office for that purpose; and such entry 'shall impart notice of such filing to both parties.
    “Within one week after such filing either party may file a written request to the court to find specifically any facts not already found which such party may deem material to the judgment in the case, and the court will pass upon the request when its final decision of the cause is rendered.
    “ If within the week no such request be filed, the court’s finding will then be considered as agreed to by both parties, and the court will proceed to decide the cause upon the basis of that finding.
    “ For good cause shown the court may allow either party to file such request after the expiration of the week, but before the announcement of the final decision of the cause.
    li For the purposes of this rule, the hearing of a cause will be considered as continuing open until the parties shall have had the opportunity herein authorized of requesting the finding of specific facts.”
    On the 9th of February, 1874, Thomas Wilson, esq., asked and obtained leave of the court to file, and then filed, in said case, nunc pro tuno, as of the 5th of February, a request for the court to file findings of facts under the above rule.
    On the 13th of April, 1874, the court ordered that the said case should be remanded to the trial-docket.
    On the loth of February, 1875, the said case was again called for trial, when tlie said Thomas Wilson, esq., for the first time, moved the court to proceed with the case from the point reached by the reversal; and it was upon the motion then made that the Court of Claims made the order of April 5, 1875, which is subjoined to the petition of said Louise C. Medway for a mandamus.
    
    Upon these facts the undersigned were of the opinion—
    First. That the mandate of the Supreme Court left the Court of Claims to decide what further proceeding in said case would be in conformity to law and justice; and
    Secondly. That it was in conformity to law and justice to set aside the findings of facts which had been made on the first trial, and try the case de novo; and thereupon the said order of April 5,1875, was made.
    The foregoing constitute all the cause which the undersigned have to show why a mandamus should not issue herein.
    C. D. DRAKE.
    E. G. LORING.
    WM. A. RICHARDSON.
    April 21,1875.
    
      
      Mr. Thomas Wilson for the motion :
    The court below having once tried the case, and having decided every question of fact arising in it, except making the computation and statement of the amount in dollars and cents, and having filed its findings in the nature of a special verdict, and an appeal had to the Supreme Court, which reversed the judgment and remanded the cause for further proceeding, the court below should be now required to proceed from the point reached by the reversal, and cannot go back over and re-try those questions of fact which were settled and determined on tbe former trial, and which, being certified to the Supreme Court on appeal, formed the basis of its reversal.
    When a case has been appealed and decided on appeal, the decision of tbe appellate court made in the cáse is to be regarded as the law of that case, and cannot be questioned in that case in the lower court, either by bill of review or in any other manner. (Gameron v. McBoberts, 3 Wheat., 591 ; White v. Atldnson, 2 Call, Ya., 376; Price v. Campbell, 5 Call, Ya., 115; Campbell v. Price, 3 Munf., Va., 227; Cunningham v. Ashley, 14 How., 377; S. C-, 13 Ark., 653; Lyon v. Merritt, 6 Paige Oh., 473.)
    Nor can it be questioned in the appellate court after the close of the term, either by motion for a re-hearing, bill of review, or second appeal. (Browder v. McArthur, 7 Wheat., 53; Ex parte Sibbald, 12 Pet., 488, 492.)
    Not even when the appellate court or the lower court had jurisdiction, which was not discovered until after the term. (Sldllern v. May, 6 Crunch, 367 ; Washington Bridge Company v. Steioart, 3 How., 413, 424.)
    Nor where it could be shown that the complainant was dead at the time original decree was passed, and that the suit had abated by reason thereof. (Ex parte Story, 12 Pet., 339, 343.) Nor for any purpose except to correct mere clerical errors.
    It is the duty of the lower court to carry into effect and execution, promptly and without delay, the mandate of the appellate court. It must do this literally and without evasion. It must proceed with the case from the point reached by the reversal. (Cox v. Pruitt, 25 Ind., 90; South Eorlc Canal Company v. Cordon 2 Abb., 479, (by Judge Field, 9th cir. Cal., 1868;) West v. 
      Brashear, 14 Pet., 54; Ex parte Dubuque and Pacific Railroad, 1 Wall., 69.
    If tbe defendant bas two defenses to bis action in tbe lower court, on tbe first of wbicb be is defeated and on tbe second be is sustained, and tbe judgment or decree entered in bis favor, then tbe plaintiff appeals and tbe decree is reversed as to tbe second defense. It is then too late for tbe defendant to rely upon tbe first defense or tbe error of tbe court in defeating it. It is too late in either tbe upper or lower court. If be desired to test tbe correctness of tbe ruling of tbe court as to that defense, be also should have appealed. Having chosen to abide by tbe second and lost, be must stand it. He cannot then be allowed to go baclr and rely upon bis first defense. No second appeal will be permitted. (Corning v. Troy Iron and Nail Eac-tory, 15 How., 451,464 ; 20 Curt., 595-598; Williams v. Gibbs, 20 How., 535, 540; Roberts v. Cooper, 20 How., 467, 481.)
    After judgment on appeal on an agreed statement of facts, or facts found by tbe judge sitting as a jury, or a special verdict, tbe defeated party cannot have a second trial in order to give him a chance to change tbe facts. “ Such a practice would open tbe door to fraud and perjuries innumerable.” (Gunter v. Laflin, 7 Cal., 502; Roberts v. Corbin <& Go., 28 Iowa, 355; Ex parte Dubuque and Pacific Railroad, 1 Wall., 69; Table <& Co. v. Shanahan, 21 Cal., 548; Argenti v. San Francisco, 30 Cal., 458, 463, 465,466; Santa Maria, 10 Wheat., 431; Martin v. Hunter's Lessee, 1 Wheat., 304,355; 3 Curt., 581; Williams v. Gibbs, 20 How., 535, 540; Cunningham v. Ashley, 13 Ark., ■653; Soule v. Dawes, 14 Cal., 194. Affirmed, Crowell v. Gilmore, 17 Cal., 194.)
    Tbe above rule does not apply where a ease was tried by a jury and exceptions taken to instructions and writ of error, nor error in overruling motion for new trial. .In those cases tbe evidence and not tbe facts goes up. (Bagley v. Eaton, 10 Cal., 149.)
    Cases may be found where a new trial was ordered where a special verdict did not find all tbe facts necessary to a complete decision of tbe case. But this applies solely to cases where tbe facts were found by a jury, and where tbe additional facts must also be tried before and found by a jury. It can have no reference- to those cases where tbe remaining facts are only those of computation, and are to be found and determined by the court sitting for the trial of questions of fact.
    The finding of facts set forth in the record remained on file in the Court of Claims; it continued to be part of its record. The judgment alone was reversed. The finding of fact remained unreversed and in full force, the same as would a case stated, the report of an auditor, or a special verdict. This is admitted by the court in its order of April 5, setting the same aside. But for this finding as to ownership, seizure, sale, and proceeds in the Treasury, the judgment would not have been reversed. It was upon these findings that the reversal was made; yet the Court of Claims, upon regaining jurisdiction of the case, so far ignore the action of the Supreme Court as to strike out and set aside the finding of those facts upon which that court based its reversal. If the proposition which I contend for is incorrect, then no decision of the Court of Claims is final upon the facts, and the different issues in a case may be determined seriatim, with an appeal to the Supreme Court intervening between each decision. If upon each reversal and remanding there be allowed a trial de novo, there'may be injected another and a new defense, which may result in another decision upon another issue, and the granting of another appeal, and so on until the last issue is disposed of by the second, third, or perhaps fourth appeal, the number of appeals being limited only by the number of issues in the ease.
    This is the inevitable result of the position taken by the Court of Claims. That it is erroneous is clearly shown by the authorities I have cited above. Take the case at bar as an illustration. Upon this proposed second trial the court might again find in favor of the plaintiff upon the issues of ownership and seizure. But suppose a new defense is set up, and some new facts found respecting the sale and proceeds in the Treasury, upon which judgment is again rendered for the defendants. I appeal. The case is again reversed, remanded, the former finding set aside, and the third trial de novo ordered. Thereupon the court again finds in favor of the plaintiff upon the issue of ownership, but another defense set up, some new facts found respecting seizure, upon which judgment is again rendered for the defendants. I take the third appeal, and it is again reversed and remanded. The former findings are again set aside, and a fourth trial de novo ordered, anew defense set up of want of ownership, facts found against the plain tiif, judgment for defendants, fourth appeal, reversal, and remanding, when judgment may be at last rendered in favor of the plaintiff. If that judgment included the internal-revenue tax, which was the subject of dispute in the Dominic O1 Grady Case, (MSS. Op. Justice Clifford, present term,) then it might require the fifth appeal to and decision by the Supreme Court of the United States to settle and finally determine one little cotton case, the number of appeals taken being equal to the number of issues in the case. If it be said that there cannot be five appeals in one case, I say there cannot be two.
    In the case of James Peay v. Kentucky, No. 408, opinion delivered last Monday, it was decided that this court would not take jurisdiction on appeal until the merits of th,e case had been disposed of by the court below; and in the North Carolina Railroad Company v. Swaney, No. 637, delivered same day, both opinions by the Chief-Justice, it was decided that the merits were not disposed of by the court below, while the amount remained unsettled and undetermined. The plaintiff in the case at bar sought by rule of this court to have the amount of proceeds found and stated by the court below, thus presenting the entire case upon its merits. The defendants, by requesting a reversal, cannot forestall the court, and make its decision less final than it would otherwise have been, and so impose upon, the plaintiff the expense and delay of a second appeal, nor upon the court the trouble and labor of a second examination and decision.
    
      Mr. Assistant Attorney-General Goforth appeared in opposition to the motion.
   After hearing counsel and considering the foregoing return of the Court of Claims, the Supreme Court refused a mamda-m«s.  