THE RESOLUTION
2 U.S. 19 (1781)

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U.S. Supreme Court

THE RESOLUTION, 2 U.S. 19 (1781)

2 U.S. 19 (Dall.)

Miller, Libellant and Appellant
v.
The Ship Resolution, &c.

Miller, Libellant and Appellant
v.
The Cargo of the Ship Resolution, &c.

Federal Court of Appeals

December Session, 1781

On motion of Wilson, for the Appellants, a rule had been granted in September Session last, to show cause, why there should not be a rehearing in these Appeals: 1st, because the decree had erred in fact; and 2nd. because there had been a discovery of material testimony since it was pronounced: And, it was argued on the 26th December, 1781, by Morris, in support of the rule, and by Serjeant and Wilcocks, in opposition to it.

In support of the rule, it was said, that the re-hearing ought to be allowed, on the principle that humanum est errare; and by analogy to the practice of the Court of Chancery, founded on that principle. It is true, that the interest of the community requires, that there should be an end to controversies; but this must be attended to, consistently with doing justice. A re-hearing of the Chancellor's decree seems, indeed, to be a matter of course, on application, for that purpose, by any two Counsel of respectable character. Bo. Cur. Can. 240. 243. 364. 385. 405. The petition for a re-hearing was filed, as soon as information of the decree was received: There has, therefore, been no laches

Page 2 U.S. 19, 20

in making the application; and even when the Chancellor has made his final decree, the form of petition merely states that he has erred in conscience, as to the facts; and the application is seldom refused. But though the request of Counsel should not, of itself, be deemed sufficient, the discovery of new evidence subsequent to the decree, ought to be admitted, as a foundation for a re-hearing. By this evidence it will appear, that other vessels, though really British, have been fitted out by the same parties, under the same cover; and, of consequence, the inference will be strong that the Resolution was also British property.

In opposition to the rule, it was observed, that the most pernicious consequences would ensue, if a new trial should be granted upon every request, and that the payment of costs will not be a sufficient check; as the advantage of having the property in hand more than compensates that inconvenience. But in answering the causes assigned for a re-hearing, it was contended, that the Law of Chancery did not apply. In Chancery, the suits being new, and the parties liable to surprize, re-hearings are frequently allowed; but in the House of Lords a re-hearing is never allowed. Nor is it consonant with the practice of this Court; though if the Court was itself dissatisfied with the principles of the decree, that would undoubtedly be a satisfactory reason for the measure. Besides, on a re-hearing in Chancery, no new evidence can be introduced; and the petition for a re-hearing must state the reasons at large. 2. Prac. Ch. 450. Ibid. 10. But this application is in the nature of a Bill of review, and must, consequently, state new evidence. Ibid. 40. 452. 3 Black. Com. 451. 3 Atk. 35. 3 P. Wm. 371. 372. Nor is the new evidence, which is assigned as another cause for a re-hearing, admissible: It respects another vessel; and the papers found on board the ship herself must be the ground of acquittal, or condemnation.

By the Court: As the original decree has not been carried into execution, we think it proper, under the peculiar circumstances of the present case, to allow a re-hearing. But this is not to be drawn into precedent; nor is any point previously determined, to be brought again into litigation, unless the state of the facts respecting it shall be altered by the new evidence.

The causes were, accordingly, argued for several successive days; and on the 24th of January 1782, the following revisionary decree (altering the suspended decree only as to a part of the cargo) was delivered by William Paca, and Cyrus Griffin, the presiding Commissioners.

By the Court. We have considered the new evidence [2 U.S. 19, 21]


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