delivered the opinion of the court.
Upon a previous appeal in this case the. judgment was reversed, and cause remanded with directions to enter a judgment subjecting to safe three undivided fourths of the tract of land in the pleadings mentioned, to satisfy and pay the plaintiff’s demand.
When the mandate was entered in the circuit court, the defendant moved for a continuance, upon affidavits filed, in order that he might have time to procure additional testimony, which he alleged he had discovered since the former trial. The court overruled his application for a continuance, and entered a judgment in pursuance of the mandate of this court, and from that decision of the court he has appealed.
The mandate of this court is imperative on the court below. It has not the option to obey or disobe,y it. This court itself has no power to revoke it after the expiration of the term at which it was pronounced. It must be carried into effect by the inferior court according to its true intent and meaning. This doctrine was fully established in the cases of Brown vs. Crow's heirs, Hardin Rep. 437, and of Kennedy, &c. vs. Meredith, 4 Monroe, 411. In the case first mentioned it was said by the court, that*' a contrary construction ‘ of the law would involve the absurdity of an appeal ‘from the decree of the appellate tribunal to itself, ‘ and the still greater absurdity of tbe reversal of the ‘ proceeding of the inferior tribunal, because it had ‘ obeyed the mandate of this court.”
2. Judgments oí the circuit court may, for any of the causes enumerated in see. 579 of the Code of Practice, be vacated even after an affirmance in the court of appeals, upon a petition to the circuit court,for such errors as could not be noticed by this court, if commenced within the time prescribed by the Code. See Rouse vs. Williams, MSS. opinion, of Winter Term„ 1857-8. A bill of review is not barred by an affirmance in this court, but can be maintained' only upon newly discover’d factsc or the recent discovery of written testimony of a permanent and unerring character. Singleton vs Singleton, 8 B Mon. 367; Bushv.Madeira’s heirs, 14 lb. 213. 3. Regularly a bill of review should not be filed until the mandate of the court of appeals is carried into effect, yet case» may occur in which it will not fee required.*775The judgment of the circuit court when rendered in pursuance of the mandate of this court, stands in that court, upon the same footing with other final judgments over which the court has no control after the expiration of the term at which they were rendered, unless it be to vacate, or modify them for the causes and in the mode pointed out in sections 579 and 581 of the Code of Practice.
A bill of review was not, under the former practice, barred by an affirmance in this court, nor was a party precluded from filing it on the ground that the decree in the court below had been rendered in conformity with the mandate of this court. But in such cases no error could be relied upon that might have been presented to, and decided by this court. A bill of review might however be maintaiped upon newly discovered facts, or the recent discovery of written testimony of a permanent and unerring character. (Singleton vs. Singleton, 8 B. Monroe, 367; Bush vs. Madeira's heirs, 14 B. Monroe, 213.)
Under the Code of Practice a judgment which has been affirmed by this court, or which has been entered in pursuance of its mandate, may no doubt be vacated by a petition in the circuit court, but it can only be done for some of the causes enumerated in b79lh section of the Code, and for such errors as could not be noticed by this court; and the proceedings instituted for such a purpose must be commenced within the time prescribed by the provisions of the Code.
It was decided at the present term, in the case of Rouse vs. Williams, (manuscript opinion.) that such a petition might be filed; and although regularly it should not be filed until the mandate of this court was carred into effect, yet if it were filed before, and presented a sufficient cause for vacating or modifying the judgment of the circuit court after the expiration of the term, if one had been rendered, it might be sustained; yet if it failed to present such a cause, and only presented matters that might have been introduced into the cause, and relied upon be*776fore it was originally tried fn the circuit court, it could not be maintained, but should be disregarded, and the mandate of this court be executed.
Applying these principles to the present case, it is obvious that the court properly overruled the defendant’s motion for a continuance. And even if he had presented the same matters upon which his motion was based, in regular form by a petition to vacate the judgment, which was the only proper mode to proceed to effect the object he had in view, still he would not have made out such a case as is embraced by any of the provisions of the Code of Practice which are applicable to the subject.
Wherefore, the judgment is affirmed.