Upon an appeal from a mandate to carry into effect a former
decree of the court, nothing is before the court but the
proceedings subsequent to the mandate.
But the original proceedings are always before the court so far
as is necessary to determine any new points in controversy between
the parties, which are not terminated by the original decree.
After a general decree of restitution in this Court, the
captors, or purchasers under them, cannot set up in the court below
new claims for equitable deductions, meliorations, and charges,
even if such claims might have been allowed had they been asserted
before the original decree.
Nor can the claimants or original owners in such a case set up a
claim for interest upon the stipulation taken in the usual form for
the appraised value of the goods, interest not being mentioned in
the stipulation itself.
Nor can interest be decreed against the captors personally by
way of damages for the detention and delay, no such claim having
been set up, upon the original hearing in the court below or upon
the original appeal to this Court.
The case of
Rose v. Himely,
5 Cranch 313, reviewed, explained, and confirmed.
Upon a mandate to the circuit court to carry into effect a
general decree of restitution by this Court, where the property has
been delivered upon a stipulation for the appraised value and the
duties paid upon it by the party to whom it is delivered, the
amount of the duties is to be deducted from the appraised
value.
This cause was formerly before the Court, and the decision then
pronounced will be found reported
Page 23 U. S. 432
in
20 U. S. 7 Wheat.
490. The claim of Mr. Burke as a
bona fide purchaser was
then rejected upon the ground of the illegality of the original
capture, it having been made in violation of the neutrality of the
United States, and a general decree of restitution was awarded in
favor of the libellant, suing in his official character as the
Consul of Spain, for the benefit of the original owners. A mandate
issued from this Court to the court below to carry that decree into
effect. Pending the original proceedings in the court below, and
before the appeal, the property, upon the application of Mr. Burke,
was delivered to him upon a stipulation given with sureties in the
usual manner, for the payment of the appraised value, according to
the future decree of the court. The appraisers estimated the
property at $7,473.43, being, as they declare, "the long price,
including custom house duties," and for this sum the stipulation
was given. Upon the application to the court below to enforce the
mandate of this Court, Mr. Burke filed a petition asserting that he
had incurred cost and expenses and paid certain liens upon the
property. The specifications now insisted on were the following:
(1) insurance on the property from Galveztown to Baltimore,
viz., $751.25; (2) duties paid on the same at Baltimore,
viz., $1,945.14. A petition was also filed on behalf of
Mr. Burke and a Mr. Forbes (who now for the first time appeared in
the cause) as joint owners of the schooner
Harriet, in
which the property in question
Page 23 U. S. 433
was brought from Galveztown to Baltimore, praying for the
allowance of freight for the voyage, amounting to $1,500. The
libellant also made an application for interest upon the amount of
the stipulation to be decreed in his favor, either from the time of
capture, from the date of the stipulation, or from the decree of
this Court.
The respective claims of all the parties for these allowances
were rejected by the circuit court, and from the decree dismissing
them an appeal was taken to this Court.
Page 23 U. S. 441
MR. JUSTICE STORY delivered the opinion of the Court, and after
stating the case, proceeded as follows:
Several preliminary questions have been argued which must be
disposed of before the Court can entertain any question upon the
merits of these claims, and if disposed of one way, they put an end
to the controversy.
In the first place it is asserted that Mr. Burke is a
malae
fidei claimant, entitled to no favor whatever, and by
reference to the original
Page 23 U. S. 442
proceedings, will be found a party to the wrongful capture and
detention of the property. And the first question, therefore, that
arises is whether upon this appeal the court can look into those
proceedings for the purpose of ascertaining the guilt or innocence
of the claimant? The principle laid down in the case of
Rose v. Himely,
5 Cranch 313, that upon an appeal from a mandate, nothing is before
the court but the proceedings subsequent to the mandate, is
undoubtedly correct in the sense in which that expression was used,
with reference to the doctrine of that case. Whatever had been
formerly before the court and was disposed of by its decree was
considered as finally disposed of, and the question of interest
raised upon the execution of the mandate in that case was in that
predicament. But upon all proceedings to carry into effect the
decree of the court, the original proceedings are always before the
court so far as they are necessary to determine any new points or
rights in controversy between the parties which were not terminated
by the original decree. The court may therefore inspect the
original proceedings to ascertain the merits or demerits of the
parties so far as they bear on the new claims, and must decide upon
the whole examination what its duty requires. In the present case
it is impossible to separate the stipulation from the other
proceedings. It is unintelligible without reference to them. The
court must inspect them to guide it in its future acts and to
enable it to carry into effect the decree of the Supreme Court.
That
Page 23 U. S. 443
decree restores the property generally as claimed by the
libellant, but what that property is, in what predicament it is,
and what are the means by which it is to be restored must be
ascertained before the court can institute any further
proceedings.
Another preliminary question is whether the subject matter of
these claims is, in this stage of the cause, open for discussion.
All the claims of Mr. Burke might certainly have been brought
forward and insisted upon in the original proceedings. If his right
to the property was not established, still he might be entitled to
equitable deductions for meliorations or charges, and if these
claims were favored by the court, the decree of restitution would
have been subject to these deductions. They would then have
constituted a lien upon the property, and the circuit court must
have enforced it. But no such claims were insisted upon in the
written allegations, or even
viva voce at the hearing; the
omission was voluntary, and the decree of restitution passed in the
most absolute and unconditional form. The consequences of now
admitting them to be brought before this Court by appeal would be
most inconvenient and mischievous in practice. It would encourage
the grossest laches and delays. The party might lie by through the
whole progress of the original cause until a final decree, holding
the real owner out of his property and securely enjoying, as in
this case, the profits, and then start new claims for future
investigation which would protract the final decision to an
indefinite period. Such a
Page 23 U. S. 444
course would have a tendency justly to bring into disrepute the
administration of justice and inflict upon the innocent all the
evils of expensive litigation. We think, therefore, that upon
principle, every existing claim which the party has omitted to make
at the hearing upon the merits and before the final decree is to be
considered as waived by him, and is not to be entertained in any
future proceedings, and when a decree has been made which is in its
own terms absolute, it is to be carried into effect according to
those terms, and excludes all inquiry between the litigating
parties as to liens or claims which might have been attached to it
by the court if they had been previously brought to its notice.
These remarks apply as well to the claim for freight as the other
items. Mr. Burke, as the importer of the goods, would, if the
carrier ship had belonged to a mere stranger, have been directly
responsible for the freight, and would have been entitled to bring
it forward in the original suit as an equitable charge. It can make
no difference in his favor that he was, as he now asserts himself
in his petition to be, a joint owner of the vessel with Mr. Forbes.
Whether, as between himself and his co-proprietor, he would be
liable to pay any freight does not appear, for the petition is
naked of any proofs, and he may have occupied only his own portion
of the vessel. Nor is there any evidence adduced that Mr. Forbes
was really a joint owner, and in his original claim Mr. Burke
expressly asserts the vessel to be his own, in terms which imply a
sole proprietary interest.
Page 23 U. S. 445
But without relying on these circumstances, it is sufficient to
say that it is too late for Mr. Burke in any way to assert the
claim for freight, and if payable at all, he must now bear the
burden occasioned by his own laches.
This view of the subject makes it wholly unnecessary to enter
upon the inquiry how far Mr. Burke is an innocent possessor of the
property in controversy, and as such entitled to equitable
deductions and charges. The claim, whether a lien or a mere equity,
has been totally displaced by the unconditional decree of
restitution.
The same doctrine applies to the claim of interest made by the
libellant. The question was involved in the original proceedings,
and the libel itself contains an express prayer for damages as well
as for restitution of the property. Damages are often given by way
of interest for the illegal seizure and detention of property, and
indeed, in cases of tort, if given at all, interest partakes of the
very nature of damages. The ground now assumed is that interest
ought to be given since the date of the stipulation, or at all
events since the decree of restitution, because the claimant has
had the use of the property during this period, and it is but a
just compensation to the libellant for the delay and loss he has
sustained by the dispossession. It might have been just and proper
for the court below to have refused the delivery of the property
upon stipulation unless upon the express condition that the same
should carry interest, if so decreed by the court. And in cases of
this nature it appears
Page 23 U. S. 446
to us highly proper that such a clause should be inserted in the
stipulation. But the present stipulation contains no such clause,
and therefore, so far as respects the principal and sureties, to
decree it upon that would be to include a liability not justified
by its terms. It is true that interest might be decreed against Mr.
Burke personally, not as the stipulator, but as the claimant in the
cause; but then it would be by way of damages for the detention or
delay. In this view it was a matter open for discussion upon the
original appeal, and no interest having been then asked for or
granted, the claim is finally at rest. What was matter formerly
before the court cannot again be drawn into controversy.
We have considered these questions thus far upon principle. But
they have been already decided by this Court. The case of
Rose v. Himely,
5 Cranch 313, is directly in point. The authority of that case has
not been in the slightest degree impugned, and without overthrowing
it this Court could not now entertain the present claims. We are
not disposed to doubt the entire correctness of that
adjudication.
The question in regard to the duties admits of a very different
consideration. The decree of restitution awards to the libellant
the whole property in controversy, and nothing more. Upon the face
of the proceedings, it appears that the stipulation was taken for
the appraised value of the property, including the duties paid to
the United States by the claimant. The amount of
Page 23 U. S. 447
those duties never constituted any part of the property of the
libellant or those for whom he acts. Neither he nor they have ever
incurred the charge or made the advance. And if it is now given to
the libellant, it is a sum beyond the value of the property, which
has been paid upon the importation without his aid and without any
injury to him or his principal. It is true that in the hands of the
claimant, the property may be assumed to be worth the whole
appraised value; but that value includes not only the value of the
property
per se, but the amount of the duties already paid
by the claimant. In receiving it, the claimant has received no more
of the libellant's property than the sum, deducting the duties
already paid. It has been said that the property was wrongfully
brought to the United States by the claimant, and therefore he is
not entitled to favor. This might be a satisfactory answer to any
attempt of the claimant to charge the libellant with the duties as
an equitable charge. But no such claim has been asserted, and if
the court were now to decree to the libellant the whole sum in the
stipulation, the decree in effect would require the claimant to pay
the duties to the libellant as well as to the government. The
original decree purports no such thing. It is confined to simple
restitution of the property, and the proceeds substituted for that
are the net sum, deducting the duties, the market price, or
appraised value, being compounded of the original value and the
duties. These observations are confined to a case where the error
in the
Page 23 U. S. 448
stipulation is apparent upon the face of the proceedings, and it
would be dangerous as well as improper to entertain the question
where the evidence must be sought from extrinsic sources.
Upon the whole, the decree of the circuit court is
Affirmed as to all things except the disallowance of the
claim for the deduction of duties, and as to that it is reversed,
and it is ordered that the libellant have restitution of the net
appraised value, deducting the duties, and that as to so much
thereof as has not been already paid to him, interest be allowed to
him at the rate of six percent per annum from the time of the
allowance of the present appeal unto the final execution of this
decree, and that the stipulation stand security therefor.
DECREE. This cause came on, &c., on consideration whereof,
it is ORDERED, ADJUDGED, and DECREED that the decree of the circuit
court in the premises be and hereby is affirmed except in
disallowing the item stated in the petition of the claimants, paid
for duties, and except so far as is otherwise directed by this
decree, and this Court, proceeding to pass such decree as the
circuit court ought to have given, does hereby further ORDER,
ADJUDGE, and DECREE that the said items of duties, amounting to the
sum of $1,945.14 be deducted from the appraised value of the
property as ascertained in the stipulation, and that the libellant
have restitution of the residue of the appraised value, and that
upon so much of the
Page 23 U. S. 449
said residue as has not already been paid to the libellant,
interest at the rate of six percentum per annum be allowed to the
libellant from the time of the present appeal until this present
decree shall be executed upon mandate by the circuit court,
together with all the costs of suit on the present as on the
original appeal, and that the said stipulation do stand as security
therefor, and that the circuit court do award execution upon the
said stipulation, for the amount of principal and interest so
ordered, adjudged, and decreed.