Syllabus-Statement.

Staunton.

MILLER'S ADM'R V. COOK'S ADM'RS.

October 11th, 1883.

1. DECREES-Interlocutory.-When the further action of the court in the cause is necessary to give completely the relief contemplated by the court, the decree upon which the question arises is to be regarded not as final, but interlocutory.

2. APPELLATE COURT-Decisions.—Decision of such court upon a question decided by the court below, is final and irreversible; and upon a second appeal in the cause, the question decided upon the first appeal cannot be reversed, and such decision is alike conclusive whether the decree appealed from was final or interlocutory.

· 3. DECREES--Interlocutory-Modification-When remanded.-Where the decree affirmed, on its face, orders that the cause be referred to a master to take a further account and report, &c., such decree is interlocutory. Upon the cause being remanded to court below for further proceedings, such interlocutory decree may be modified upon exceptions to the master's report on motion or otherwise. Steptoe v. Steptoe, 1 Munf. 339; Smith v. Blackwell, 31 Gratt. 291.

4. SEQUESTRATION ACTS-Unconstitutional.-The U. S. constitution, prohibiting a state from passing a law impairing the obligation of a contract and discriminating against citizens of another state, equally prohibits a state from enforcing as a law, an enactment sequestrating debts owing to loyal citizens, come that enactment from whatever source. Williams Bruffey, 6 Otto, 176.

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5. IDEM-Personal representatives.-The credit allowed to administrators, &c., for money owing from them to loyal non-residents during the late war and paid by them under compulsion of the Confederate sequestration enactment, rests on other and higher ground than such enactment. Newton v. Bushong, 22 Gratt. 629, contra.

Appeal from decree of circuit court of Rockingham county, rendered 1st December, 1880, in suit wherein Henry Lingle and

Statement.

others were plaintiffs, and John Cook's administrators, D. H. Rolston, sheriff of said county, and as such administrator of Margaret Miller, deceased, and others, were defendants. This is the sequel to the case of Lingle and als. v. Cook's administrators, 32 Gratt. 262. In 1860, John Cook died in said county testate, leaving real and personal property of more than one hundred thousand dollars value, but neither wife nor child. By his will, which was admitted to probate 16th July, 1860, he bequeathed his estate, after the payment of his debts, to his brothers and sisters, and the children of such of them as might be dead. Robert B. Cook, Joseph Conrad, and George W. Miller, qualified as his administrators, c. t. a. In 1866 the said suit was instituted to settle the administration and distribute the estate, as was in the following year the suit of Eddins and als. v. Cook's administrators and als. They were consolidated. Various proceedings were had until 3rd October, 1874, when a decree was entered settling the principles involved. From it an appeal was taken to this court, by which it was affirmed, and the cause went back for further proceedings. The decree' affirmed was vague and uncertain in parts, and on its face provided "that this cause stand referred to a master commissioner, with instructions to state and settle a farther distribution account, and a farther account of the fund to the credit of this cause, and that he make report to the court at its next term," &c. In February, 1880, the circuit court modified the decree of October 3rd, 1874, which had been affirmed, so as to make it more specific. The master having filed his report, and the same being excepted to, in June, 1880, the circuit court, without passing upon the exceptions, recommitted the report, with instructions that the master make two additional statements, to-wit: one showing the account after scaling payments made to any heirs in Confederate currency, and the payments made in that currency to the Confederate sequestrator; the other showing the account disregarding those payments to the sequestrator, but scaling such payments to the heirs. The master made re

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port to December term, 1880. His report embraced five statements: First, showed the payments in Confederate currency to the heirs and to the sequestrator after scaling them; second, classified the heirs as to the amounts they had received as of 15th June, 1880; third, showed how and to whom the funds should be paid to equalize the heirs; fourth, showed the payments made to the heirs, disregarding all payments made to the Confederate sequestrator, and scaling all other payments in Confederate currency; fifth, showed how and to whom the fund should be paid, disregarding payments to the Confederate sequestrator to equalize the heirs as of June 15th, 1880. By its decree of 1st December, 1880, the court confirmed the first, second and third statements, and disapproved the fourth and fifth statements, thus allowing the administrators credit for the scaled value of Confederate currency payments to any of the heirs, and the payments made under compulsion to the Confederate sequestrator. No such questions arose, or were decided on the first appeal. From this decree the administrator of Margaret Miller obtained an appeal from one of the judges of this court.

John E. Roller, and E. S. Conrad, for the appellant.

For the appellee it is argued that as the decree of the 3d of October, 1874, is interlocutory, the circuit court had the right to review the same, and "change, correct, modify, or reverse it in any respect, upon motion, without a petition or bill of review," notwithstanding the fact that an appeal was taken to this court on the 2d of October, 1876, and this court rendered a decree at its September term, 1879, in Staunton, affirming all the decrees and proceedings heretofore rendered in the cause.

What was the effect of that appeal and that decree of affirmance?

It was to bring up the whole proceedings in the cause prior to the appeal, and to have the appellate court pass not only upon

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all errors against the appellants, but also upon all errors in those proceedings against the appellees.

The rule is thus stated in 2 Robinson's Practice, old edition, page 433: "Upon appeals from interlocutory decrees, so much of the cause is before the appellate court as the court below has acted upon, and no more. Madden v. Madden, 2 Leigh, 377; Deas v. Thorner, 3 Johns. 543. As in the case of an appeal from a final decree, not only an error in that, but any error in the former proceedings, ought to be corrected. So, upon an appeal from an interlocutory order, not only errors in that order, but errors in the former proceedings should be corrected. In either case the effect of the appeal is to bring up the whole proceedings prior to the decree or order from which the appeal is taken. Lomax v. Picot, 2 Rand. 247; Jaques, &c. v. Methodist Episcopal Church, 17 Johns. Rep. 548; Atkinson v. Mauks, 1 Cow. 702; Teal v. Woodworth, 3 Paige, 470."

These principles have been affirmed in Burton v. Brown, 22 Gratt. 1; Campbell v. Campbell, 22 Gratt. 673.

2. When the cause thus presented is determined by the appellate court, that decision is final, irreversible and conclusive upon all parties, not only upon the court of appeals itself when a new appeal is taken, but, a fortiori, upon the inferior court. It can only be assailed by a bill of review, upon the ground of the discovery of new matter unknown to the party seeking relief at the time the decree was rendered, and such as he could not have discovered by the use of reasonable diligence; and even then the court acts with the greatest caution; but for error apparent upon the face of the record, no bill of review can be received.

Yet it is claimed that it can be done by the inferior court upon a motion merely, without even a petition or bill of review, because the decree was interlocutory. But Judge Moncure, in Campbell v. Campbell, 22 Gratt. 671, declares: "We know of no warrant for any such distinction as is thus attempted to be drawn between what are called final and interlocutory decrees VOL. LXXVII-102

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of this court; and we have been referred to no authority in support of this view, As was correctly said by the learned counsel of the appellees in their argument of this case, all the judgments and decrees of this court are final, and none of them are interlocutory."

The pretension in Campbell v. Campbell, 22 Gratt., was not that the inferior court could ever presume to correct what it might choose to call an error in the judgment of the court of appeals, but that the latter court itself, when the case came before it for the second time upon an appeal from a subsequent decree, could correct the error. "It seemed to be supposed that an appeal from a subsequent decree would bring up the whole. case to this court, and thus empower it to make such decree in it as justice might require. Now, that is not the true theory. Such an appeal brings up only the proceedings in the case subsequent to the decisions of this court and the former appeal." See Cahoon's Case, 21 Gratt. 822; Bank of Old Dominion v. McVeigh, 29 Gratt. 534; Barkesdale v. Fitzgerald, 76 Va. Rep. 892.

The language of the supreme court of the United States in the case of Kendecott v. Supervisors, 4 Otto's Reports, 283, is as follows: "It is settled in this court that whatever has been decided here upon one appeal cannot be re-examined in a subsequent appeal of the same suit. Such subsequent appeal brings up for consideration only the proceedings of the circuit court after the mandate of this court." Himely v. Rose, 5 Cranch, 313; Martin v. Hunter's Lessee, 1 Wheat. 355; Broadus v. McAuther, 12 Id. 53; Sibbard v. United States, 12 Pet. 492; Corning v. Troy Iron and Nail Co., 15 Howard, 464; Sirzee v. Maury, 16 Id. 103; Roberts v. Cooper, 20 Id. 481; Tyler v. Maguire, 17 Wall. 283.

In Campbell v. Campbell, 22 Gratt. p. 673, Judge Moncure declares that upon the second appeal, even the appellate court can only look to the proceedings in the cause subsequent to the decision of this court, on the former appeal, and in Bank of Old Dominion v. McVeigh, 29 Gratt. 553, Judge Anderson