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1825.

The Santa
Maria.

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on, there was a minor claim in the Court below for the difference between the valuation and the actual sales, which was withdrawn upon the au

a Rose v. Himely, 5 Cranch's Rep. 313.

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thority of the case of the Betsey, and other cases

cited in a note to that case."

1825.

The Santa

To the claims for duties, insurance, and freight, Maria. 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 pre

a 5 Rob. 295.

b The Fortuna, 4 Rob. 228. The Vow Anna Catharina, 6 Rob. 269. The Nereide, 1 Wheat. Rep. 171. The St. Lawrence, 2 Gallis. 20.

c 4 Cranch, 281. 5 Cranch, 316.

1825.

The Santa

Maria.

sent 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

a The Concord, 9 Cranch, 387.

The Santa

Maria.

the Court below, nor by this Court, upon the first 1825. 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 mala 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 spe

The Santa
Maria.

1825. cific 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

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