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 dispósed of before the Court, can entertain any question upon the me rits 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 jidei
claimant, entitled to no favour whatever; and by reference to the original
proceedings, will be found
&
party to the wrongful capture ánd 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 doin 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,, thérefore, inspect the;original proceedings, to ascertain the merits or demerits of the parties, so far &s 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
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 farther proceedings.
The rule, that upon an appeal from a mandate, nothing is before the Court hut the proceedings subsequent to the mandate, explained.
After a general decree of restitution in this Court, new claims for charges and liens cannot be set up in the Court below.
Another preliminary question is, whether the subject matter of these cl aims, is, in this stage the cause, open tor discussion. AH 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 established, still he might be entitled to equitable deductions for meliorations or charges; and if these claims were favoured by the Court, the decree of restitution would have been subject t$ 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 decuee of restitution passed, in the most absolute and unconditional form. The consequences of now admitting them to be brought before tins' 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, á 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 nn indefinite period. Such a
course would have a tendency justly to bring into disrepute the. administration of justice,, and inflict upon the innocent all the. evils of expénsive litigation. Wé 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 b,e 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 Reflect, -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 havé been .entitled to. bring it forward if the original, suit as an equitable charge. <. It cap make no difference in his favour,, 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 nakéd of any proofs, and .lie may have occupied only ins 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.
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 how bear the burthen occasioned by his own laches:
Interest upon
the stipulation not allowed. Not, in personam,
against the party, the claim or interest not having been asserted before the original decree and mandate thereon.
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 libe
l
itself contains an express prayer for as well as for restitution, of. the property. Dámages 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 délay and loss lie has sustained by the dispossession.
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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 dispósed of before the Court, can entertain any question upon the me rits 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 jidei
claimant, entitled to no favour whatever; and by reference to the original
proceedings, will be found
&
party to the wrongful capture ánd 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 doin 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,, thérefore, inspect the;original proceedings, to ascertain the merits or demerits of the parties, so far &s 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
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 farther proceedings.
The rule, that upon an appeal from a mandate, nothing is before the Court hut the proceedings subsequent to the mandate, explained.
After a general decree of restitution in this Court, new claims for charges and liens cannot be set up in the Court below.
Another preliminary question is, whether the subject matter of these cl aims, is, in this stage the cause, open tor discussion. AH 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 established, still he might be entitled to equitable deductions for meliorations or charges; and if these claims were favoured by the Court, the decree of restitution would have been subject t$ 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 decuee of restitution passed, in the most absolute and unconditional form. The consequences of now admitting them to be brought before tins' 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, á 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 nn indefinite period. Such a
course would have a tendency justly to bring into disrepute the. administration of justice,, and inflict upon the innocent all the. evils of expénsive litigation. Wé 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 b,e 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 Reflect, -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 havé been .entitled to. bring it forward if the original, suit as an equitable charge. <. It cap make no difference in his favour,, 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 nakéd of any proofs, and .lie may have occupied only ins 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.
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 how bear the burthen occasioned by his own laches:
Interest upon
the stipulation not allowed. Not, in personam,
against the party, the claim or interest not having been asserted before the original decree and mandate thereon.
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 libe
l
itself contains an express prayer for as well as for restitution, of. the property. Dámages 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 délay and loss lie 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 ap
pears 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!
313.) ed’
Duties to be deducted from the appraised value.
We have considered these questions thus far principle. But they have been, already decided by this Court. The case of
Rose v. Himely,
(5
Cranch's Rep.
313.) is directly in point. The authority of that ease has not been in the slightest degree impugned, and, without overthrowing it, this Court'could not now entertain the present claims. We are hot 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
those duties never constituted any part of the property of the libellant, or those for whom he acts. Neither lie 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 m 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
perse,
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, therefor?, he is not entitled to favour. 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 décree 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 cáse, where the error in the
stipulation is apparent, upon the face of the proceedings ; and-it would be dangerous, as well, as improper, to entertain the question, where the .eyideheé must be sought from extrinsic sources.-
Upon, the whole, the decree of the Circuit Court is affirmed as to all things, except the dis-allowance of the claim for the deduction of duties, and as to that, it is reversed; and it is ordered that the libellant have restitution if 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 bina at the rate of six per cent; per annum, from the time of thé allowance of the present appeal, unto the final execution of this decree, and that the stipulation stand security therefor.
Decree. This causé 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 ih disallowing the item stated in the petition of the, claimants, paid for duties, and except so far as is otherwise directed by this decree ; arid this Court, proceeding to pass such decree as the Circuit Court ought to have given, do hereby further order, adjudge and decree, that the said items of duties, amouriting to the sum of nineteen hundred , and forty-five dollars and fourteen cents, 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 rnueh of the
said residue as has not already been paid to the libellant, interest at the rate of six per centum 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 presentas on the original appeal; and that the said stipulation do stand as security therefor ; §nd that the Circuit Court do award execution upon the said stipulation, for the amount of principal and interest so ordered, adjudged and decreed.