The Santa Maria the Spanish Consul

APPEAL from the Circuit Court of Maryland.

This cause was formerly before the Court, and the decision then pronounced will be found reported, ante, vol. 7. p. 490. The claim of Mr. Burke, as a bonce fidcei 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 favour 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 dollars and 43 cents, 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 dollars and 25 cents. (2.) Duties paid on the same at Baltimore, viz. 1945 dollars and 14 cents. 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 was brought from Galveztown to Baltimore, praying for the allowance of freight for the voyage, amounting to 1,500 dollars. The libellant also made an application for interest upon the amount of the stipulation to be decreed in his favour, 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. Feb. 10th.

The Attorney General, for the appellant, Burke, stated, that the allegation demanding restitution in the original case, was filed by the Spanish Consul against the goods, and the appellant claimed the cargo as having been remitted to him in return for an outward cargo shipped to his agent at Matagorda. It is now alleged, that he was part owner of the capturing vessel, and, therefore, as a wrong doer, not entitled to the equitable deductions he claims. He insists, that he is a bonae fidei purchaser, without notice of the illegal capture, and, therefore, entitled to be allowed for duties and other charges. In the admiralty, the libellant and claimant are both actors. If, therefore, it had been the wish of the libellant to put in issue the fact of Burke's knowledge of, or connexion with, the illegal capture, he should have answered the averment which is contained in the claim, that he (Burke) was entirely ignorant of, and unconnected with, that transaction; or he should have filed an amended libel, and charged the guilt of Burke. The libellant did neither; and thus the fact of B.'s guilt or innocence was not in issue in that case. It was not involved in the decision of the Court, which turned on the facts of the illegal armament of the Patriota in the ports of the United States, the capture of the Santa Maria by that vessel, and the identity of the goods as part of the cargo of the Santa Maria. These facts being established, it was immaterial who the owners of the capturing vessel were, or how the goods came into the possession of Burke. Restitution was decreed to the original owners, and it was in the execution of this decree under the mandate from this Court, that the proceedings now in question took place. Upon the present appeal, nothing is before the Court but what is subsequent to the mandate. The respondents cannot, therefore, enter into the question of the guilt or innocence of Burke upon the evidence in the original cause. He is now to be considered as an innocent purchaser, and entitled as such to all equitable deductions, meliorations, and charges.

Besides the other claims which are now insisted on, there was a minor claim in the Court below for the difference between the valuation and the actual sales, which was withdrawn upon the authority of the case of the Betsey, and other cases cited in a note to that case.

To the claims for duties, insurance, and freight, it was objected in the Circuit Court, that the Court had no authority to consider them, because the original decree of this Court had closed the door against all inquiry into the subject, upon the principle settled in Rose v. Himely. But this was a misapplication of the principle determined in that case. The question on the first appeal was merely as to the proprietary interest of the cargo. But after the principal question in the cause has been finally decided, and the cause quoad hoc perpetually disposed of, any question of charge upon the original fund may still be taken up as a new question, so long as the fund remains within the power of the Court. Such is understood to be the practice, both in England and in this country. Considering Burke as an innocent purchaser of the goods, who had brought them to the United States, where they were claimed by the original owners, and restored to them, because of the defect of title in those from whom Burke had purchased, this case cannot be distinguished in principle from that of Rose v. Himely, in which freight, insurance, duties, and other expenses, were allowed, under the same circumstances. The charges and expenses in the present case, having been actually borne by the innocent purchaser, in bringing the goods safely into the country, seem to enter into the value of the articles themselves; and in withdrawing them from the possession of the purchaser, a reimbursement of his actual expenses is required by natural equity, and may be considered as a species of mitigated salvage. The claim for the amount of the duties rests upon higher grounds. Wherever goods are sold by order of Court, or consent of parties, the duties attach as upon an ordinary importation; and upon restitution of the proceeds, the amount of the duties is to be deducted. The party gets more than the value of the goods, if he gets the amount of the duties; and the purchaser pays the duties twice over to the government as duties, and again to the original owner, as part of the long price value of his goods.

As to the claim by the other party for interest upon the appraised value, so far as it is claimed from the time of capture, the question is not before this Court, because it was not made in the Court below. Nor can it be allowed from the date of the stipulation, because the stipulation is a mere substitute for the specific goods, which would not have carried interest. The principle of Rose v. Himely applies to this demand, since it is in the nature of a claim for damages for the illegal detention and delay, which were prayed in the original libel, but which were not allowed by the Court below, nor by this Court, upon the first appeal. Interest might, doubtless, have been expressly reserved in the stipulation, if the Court below had deemed the party entitled to it. But these questions are definitively closed by the original decree, and cannot arise upon the mandate to carry that decree into effect.

Mr. D. Hoffman, contra, insisted, that the original proceedings in the cause showed that Burke was a participator in the illegal seizure of this property, and, consequently, could not claim any equitable deductions from the full value on account of charges incurred by him in its preservation. He was a malae fidei possessor, who was not entitled to be allowed for his expenses actually laid out upon the property, still less for the fictitious charges of freight, insurance, and duties. As to the duties, they have been incurred solely by his electing to import the goods for consumption. Had they been delivered to the original owners, and carried away by them, or had they never been brought in, they would not have been subject to duties. There was a manifest inconsistency in the opposite argument, which would not admit the stipulation to carry interest, whilst it sought to diminish the principal sum specified in the stipulation, by claims which might have been made upon the original hearing. But there is no principle, authority, or established practice, which requires, that where the goods have been delivered on bail, the Court should, cotemporaneously, decree restitution of the specific thing, and the performance of the stipulation. The Court may decree restitution generally, and in executing the decree it is to be applied to the stipulation, so as to include not only what is substantially comprehended in the decree, but every equitable demand consistent with it, although not expressly included in its terms. The allowance of interest by the Court below, after the original decree in this Court, does not so much depend upon the circumstance of its being expressly reserved upon the face of the stipulation, as upon the notorious fact, that the Court would be subsequently called on to act definitively upon the stipulation, when it came to execute the final decree of this Court. In thus executing it, by allowing interest, the Court below would not modify or add to the original decree of this Court, since this allowance opens nothing which had been adjudicated by this Court, and is to be regarded as nothing more than an incident to the execution of the decree of restitution. That restitution would have been incomplete without it, as, if the property had not been delivered to the capturing claimant upon bail, it might have been delivered in the same manner to the original owner, or sold by order of Court, and the proceeds invested in stocks bearing an interest.

As to the case of Rose v. Himely, it will be found that the Court there assumes, that the question of interest was before it on the original appeal, and asserts, that if the claim had then been made, it would have been rejected, because the Court did not consider the appellants as infected by the marine trespass committed by the captors. 'The circumstances of the case were such as to restrain the Court from inserting in its decree any thing which might increase its severity. The loss was heavy, and it fell unavoidably on one of two innocent parties. The Court was not inclined to add to its weight by giving interest in the nature of damages. The allowance of interest, therefore, in the Court below, is overruled.' Besides, in that case, the Court had all the questions of equitable deductions and allowances before them on the original appeal, and gave a very special decree and mandate, which, ex industria, omitted interest. But here the question is not between two equally innocent parties. Here none of the questions of freight, insurance, duties, and interest, were raised in the original cause. They were all reserved as incidental to the stipulation, which was not then brought before this Court.

The doctrine laid down in Rose v. Himely, that after a decree in this Court, and the cause sent by mandate to the Court below, and the further proceedings upon the mandate are appealed from, nothing is before this Court on the appeal but what is subsequent to the mandate, is unquestionably a sound and salutary rule. But is it any thing more than what the general principles of law would establish? Is it any thing more than an application of the familiar maxim as to res adjudicata? 'Nothing is before this Court,' says the Chief Justice, 'but what is subsequent to the mandate.' This is unquestionably true, but with this indispensable qualification, that the matter in question prior to the mandate was, or ought necessarily to have been, before the Court originally. The rule was applied to the claims of freight and insurance which the original decree of this Court had expressly allowed, but which the commissioner appointed by the Circuit Court under the mandate had disallowed. But no case can be found which requires the Court below to pass any decree, in the first instance, upon the stipulation, or to allow interest before the appeal, or which requires the question of interest, or any similar incidental claim, to be brought before this Court upon the original appeal. The rule in regard to matters prior or subsequent to the mandate, appears to be understood precisely in this manner by the learned Judge who delivered the opinion of the Court in Martin v. Hunter. 'A final judgment of this Court is conclusive upon the rights which it decides, and no statute has provided any process by which this Court can revise its own judgments.'

The claim for interest is an incident to the execution of the mandate for restitution. Interest is impliedly due, wherever a liquidated sum of money is wrongfully withheld. 'If a man has my money by way of loan, he ought to answer interest; but if he detains my money wrongfully, he ought, a fortiori, to answer interest; and it is still stronger, when one by wrong takes from me my money or goods, which I am trading with, in order to turn them into money.' Were not this the case, a strong temptation would be presented to debtors to violate their duty. In the language of Lord Mansfield, 'they would be encouraged to make use of all the unjust dilatoriness of chicane, and the more the plaintiff is injured, the less he will be relieved.' This is emphatically applicable to the present case, where the capturing claimant has superadded to the original wrong done to the owners of these goods, all the unjust dilatoriness of chicane. Feb. 26th.

Mr. Justice STORY delivered the opinion of the Court, and, after stating the case, proceeded as follows: