1877. Novem'r Bank of V. ANDERSON, J. When this cause was formerly before us, we held (Me Veigh & al. v. The Bank of the Old Dominion, Term. 26 Gratt. 852), "that the notices addressed to William N. McVeigh, and delivered to his white servant at his residence in Alexandria, and the notice delivered to Ramsey Domin'n at the Bank of the Old Dominion, under the facts and MeVeigh. circumstances disclosed by the record, were insufficient in law; and that for reasons set forth in the opinion, the court below erred in refusing to give the defendant's third instruction, which is in these words: If the jury believe from the evidence aforesaid (the evidence in the cause), that the only notice of the non-payment and dishonor of the notes sued on given to him by William N. McVeigh was the notice contained in the notarial certificate of protest, then said notice was invalid and inoperative to bind the said William N. McVeigh, and they must find for him.' And also that it erred in overruling the defendant's motion for a new trial. And it was considered by the court that the judgment of the corporation court of the city of Alexandria be reversed and annulled, the verdict of the jury set aside and a new trial awarded the plaintiff in error.' And the cause was remanded to said corporation court for further proceedings therein' in conformity with the principles herein declared, and in the opinion of the court, filed with the record." Nothing can be clearer, therefore, or more certain, than that it was decided by this court in this cause, when it was here before, that the notarial protests and notices were insufficient in law to fix a liability in law upon the endorser, William N. McVeigh, and that "it was incumbent upon the defendant in error (the bank, now plaintiff in error,) within a reasonable time after communication was restored between the parties by the termination of the war, to give the endorser notice of the non-payment and dishonor of the notes in controVOL. XXIX-70 Bank of 1877. versy, which were endorsed by him for the accommodaNovem'r Term. tion of the makers." We have no doubt that these points were rightly decided, as we think is shown by the Old opinion which was delivered in support of the decision Domin'n to which we refer, and which on the main point we think McVeigh. is sustained by the supreme court of the United States in the more recent case of Earle v. McVeigh, 1 Otto U. S. R. 503. V. But the only question which has not been decided, and which is now properly before the court for its determination is, has such notice been given to the endorser since the termination of the war, in a reasonable time, as was held to be requisite by the former judgment of this court in this cause? The points thus decided cannot be re-examined. After the cause was decided, the then defendant in error (the bank) moved the court for a rehearing, which was overruled, there being no doubt in the mind of any one of the judges who concurred in the decision that it was right. And to allow the plaintiff here to litigate the points which have been decided, would be to give him a rehearing now, which was refused when asked for in time. There ought to be an end to controversy. "According to the established rule of this court, these points are to be taken as settled law in this examination, and the question is, whether the case, as now presented to us, is beyond their influence," as was said by Carr, J., in Bank of the Valley v. Stribbling, ex'or, 7 Leigh 26. In Chahoon's case, 21 Gratt. 822, it was held that a decision which had been made in the first trial upon a question in the cause, although by an equally divided court, was final and irreversible on the second trial, and could not be changed even if the court were disposed to change it; Moncure, P., delivering the opinion. And in the case of Campbell's ex'or v. Campbell's ex'ors, 22 Gratt. 649, Moncure, P., reviews the decisions of this court 1877. Novem'r Bank of Old V. on the subject, and deduces from them the same doctrine, whether the decision was made upon an appeal Term. from an interlocutory or final decree of the circuit court. It is also the established doctrine in the supreme court of the United States. In a recent case (Supervisors v. Ken- Domin'n nicott, 4 Otto U. S. R. 498), Chief Justice Waite, speak- MeVeigh. ing for the whole court, said: "It is settled in this court that whatever is decided here upon one appeal, cannot be re-examined in a subsequent appeal of the same suit. Such subsequent appeal brings up for consideration the proceedings of the circuit court after the mandate of this court." This opinion he fortifies by a reference to numerous decisions of that court. But why make further references in support of a rule which has been uniformly acted on by this court, and which is in conformity with established principles? There is nothing m the case, as now presented to us, which takes it beyond the influence of this well established principle. The record of the second trial shows no new facts, or change of circumstances, which have the slightest bearing on the aforesaid decision. At the second trial the plaintiff submitted a series of propositions, in the shape of instructions, and moved the court to give them to the jury. Of the fifteen instructions thus tendered, the court gave the 15th and rejected the fourteen. All of them, from No. 1 to No. 8 inclusive, and No. 14, controvert the foregoing decision of this court, not upon any new evidence which had any bearing upon the question, but upon grounds which were as cognizable by the court then as now, and were doubtless considered by the court, as far as they were entitled to consideration, or to have any influence in the formation of its opinion. The attempt to introduce political questions, and to create issues between this court and the Federal court, which could have no further influence 1877. upon the decision now than before, as no new fact has Novem'r Bank of V. Term. been brought into the record on those subjects, cannot be sustained. The court before refused to give any Old opinion on the constitutionality of the ordinance of Domin'n secession, as it does now-such question being irrelevant McVeigh, and not involved, as we think, in the decision of the cause. The decision of this court would be the same, whether it held the said ordinance of secession to be constitutional or unconstitutional. For the grounds of our decision, we refer again to the opinion heretofore referred to. 26 Gratt. supra. All these matters which were foreign to the questions in issue, and all the argumentation and enunciation of principles in the aforesaid instructions, were offered in contravention of the decision of this court; and for this cause, if there were no other, the court below very properly refused to give them to the jury. The 9th and 12th instructions relate to the notice, required by the former judgment of this court, to have been given in a reasonable time after the cessation of hostilities, &c. And the question, has such notice been given, is a proper subject for consideration now. To show that it was given, the plaintiff' exhibits a resolution which was adopted by a meeting of stockholders of the bank, which was held in Alexandria on the 18th of July, 1865. The resolution is in these words: "Resolved, That the notes purporting to have been paid at the Pearisburg branch, but which constitute a part of the assets of this mother bank, are deemed by this meeting as still due to it, and the president and directors, now about to be elected, be requested to take such legal proceedings against the drawers and endorsers to recover the same as they may find for the true interests of the bank." 1877. Novem'r Is this a notice to William N. McVeigh? Is it a notice of the non-payment and dishonor of the notes which are Term. the subject of this controversy? Bank of V. It is not a notice to William N. McVeigh at all. His name is not mentioned. It does not seem to have been Domin'n intended, and evidently was not, as a notice to him. If McVeigh. the bank had intended it as a notice to him, it would have been actually served on him before he left the city. Or if it had been the intention to give him notice, the president and directors, as soon as they were elected, would have had notices prepared of the non-payment and dishonor of the notes, and had them regularly served on him. It seems to have been intended as a communication to the president and board of directors to be elected; that it was the opinion of the meeting that a certain class of notes were still due to the bank, and an instruction to them to take such legal proceedings for their recovery as they may find will be for the true interests of the bank. It is rather a direction to the board for inquiry. There is no positive decision that it would be to the interest of the bank to institute legal proceedings, and no positive direction to the board to bring suit. But if the resolution had been put in the hands of William N. McVeigh, ór if its contents had been brought to his knowledge, it is granted that it would have put him on inquiry, whether the bank intended to dispute the payment of the notes which he had endorsed, and would look to him for payment. But it is not pretended that the resolution was put in his hands, or a copy of it served on him by the bank, but that it had incidentally come to his knowledge that the bank had adopted such a resolution. Would that be such a notice as is required to fix his liability as an endorser? No precise form of words are necessary to constitute a notice. But there are three requisites, Mr. Justice Story |