The above-entitled case was decided by the Courten banc, and its decision filed with the Clerk of the Supreme Court in December last. Within ten days and before the remittitur has gone to the Circuit Court a petition for rehearing has been filed. Can it be entertained? The inherent power of the Supreme Court to modify or vacate its decision during the term in which it is made, and before its judgment is remitted to the Circuit Court (Code Civ. Proc., § 27), is not doubted (Empire MiningCo. v. Propeller Towboat Co., 59 S.C. 552;38 S.E., 156). Does the provision in the Constitution, Art. 5, § 12, that "the decision of the Court so constituted," i.e.,en banc, "or a majority of the Justices and Judges sitting shall be final and conclusive," prevent the Court en banc from reviewing a case after its decision is filed with the Clerk of the Supreme Court, but before the remittitur is sent from the Supreme Court to the Circuit Court. Like our former Courts of Error under the Acts of 1836 (7 Stats. at Large, p. 340), as noted by Chancellor Harper inPell v. Ball, 1 Rich., Eq., 421, 426, and of 1859 (12 Stats. at Large, p. 648), the Court en banc differs materially from the Supreme Court, in that it is merely a consultative one, like the English court of Exchecquer Chamber, whose judgments were authoritative, though the suitor had no right of appeal to it. The Court en banc is called into existence by the Justices of the Supreme Court, only when they may desire to consult with the Circuit Judges as to particular causes or questions. It has no fixed terms, and loses jurisdiction when it has answered the question submitted (Interstate Coal, etc., Co. v. Clintwood Coal, etc.,Co., 105 Va., 574; 54 S.E., 593) by filing with the Clerk of the Supreme Court its written decision signed by a majority of the Justices and Judges (Hinson v. Pickett, 2 Hill, Eq., 354). Its functions are then exhausted. The Act of 1859 (12 Stats. at Large, p. 648), provided: "The *Page 371 decision of which Court," i. e., of Errors, "or a majority of the Judges sitting, shall in all cases be final and conclusive." I know of no instance where after filing its decision the Court of Errors entertained a petition for rehearing.
So, after final judgment in the House of Lords, or in the Judicial Committee of the Privy Council, no rehearing is allowed, unless for the purpose of correcting mistakes in the form of the decree. Powers v. Sturtevant, 200 Mass. 520;86 N.E., 789. Winchester v. Winchester, 121 Mass. 130.
In Perkins v. Lang, 1 McCord, Eq., 30, 31, note, Chancellor Gaillard, with the concurrence of Chancellors De Saussure, Waties, and James, speaking of the first Court of Appeals in Equity, said:
"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 intention to allow bills of review for error on the face of them."
In Jeannerett v. Radford, Rich., Eq. Cas., 472, Chancellor Harper said:
"As to the question of rehearing, the organization and practice of the Courts of Chancery in this State are so different from those of the country from which we derive our jurisprudence, that it is exceedingly difficult to apply the rules which obtain there. It was decided by the late Court of Appeals in Equity, that after a full and final hearing, the Court is not at liberty to open cases for rehearing, on account of error in the decree. Burn v. Poaug, 3 Desaus., 596; Haskell v. Raoul, 2 Tread., 896. The present Court of Appeals, in the case of Haskell v. Raoul, 1 McCord, Eq., 22, held the same opinion."
See, also, Manigault v. Holmes, Bailey, Eq., 283; Carrv. Green, Rich., Eq. Cas., 408; Price v. Nesbit, 1 Hill, Eq., 458; Hinson v. Pickett, 2 Hill, Eq., 355; Hill v. Watson,10 S.C. 276, 277; and Ex parte Knox, 17 S.C. 209, 215.
In the case last cited Judge Kershaw said: *Page 372
"Although these cases are based mainly on the terms of the statutes establishing the Courts which declare that their decrees shall be final, yet in principle they would seem to apply as well to the Courts as at present constituted. * * * Moreover, this practice is said in Carr v. Green to be conformable with that of all the Courts in England and the United States, the organization of which bears analogy to ours, which dictum is sustained by authorities both English and American."
In State v. Adams, 83 S.C. 152; 65 S.E., 220, it was held that the Supreme Court cannot set aside or in any way lessen the effect of a judgment rendered by the Court sittingen banc.
For these reasons, I concur in the order dismissing the petition for rehearing.
MESSRS. SEASE and RICE, Circuit Judges, concur.