The Santa Maria the Spanish Consul/Opinion of the Court

Several preliminary questions have been argued, which must be disposed of before the Court can entertain any question upon the merist 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 favour whatever; and by reference to the original 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 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.

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 favoured 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 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 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 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. 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 burthen 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 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's Rep. 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 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 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 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 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 per cent. 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, do hereby further ORDER, ADJUDGE and DECREE, that the said items of duties, amounting 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 much 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 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.