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in this Court,

be set up in

decree restores the property generally as claim 1825. ed by the libellant; but what that property is, in the what predicament it is, and what are the means Maria. by which it is to be restored, must be ascertained, before the Court can institute any farther proceedings. Another preliminary question is, whether the After a ge

neral decrce subject matter of these claims is, in this stage of of restitution the cause, open for discussion. All the claims new claims for

charges and of Mr. Burke might certainly have been brought liens cannue forward and insisted upon in the original pro- the Court" be ceedings. 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 piva poce 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

1825. course would have a tendency justly to bring into

disrepute the administration of justice, and inThe Santa Maria. flict 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 1825. sufficient to say, that it is too late for Mr. Burke

The Santa in any way to assert the claim for freight, and if Maria. 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 in- Intorest upon

the stipulacion terest made by the libellant. The question was not allowed.

Nor, in persoinvolved in the original proceedings, and the libel nam, against

the party, the itself contains an express prayer for damages, claim for inte as well as for restitution of the property. Da- been asserte

before the orimages are often given by way of interest for the ginal deer illegal seizure and detention of property; and, iberec 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 ap

- been asserted

and mandate value,

1825. pears to us highly proper that such a clause

should be inserted in the stipulation. But the The Santa Maria. 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 contro

versy. Rose v. Hime. We have considered these questions thus far ly, (5 Cranch, 313) confirm- upon principle. But they have been already de

cided 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. Duties to be The question in regard to the duties, admits deducted from the appraised 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

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those duties never constituted any part of the 1825. property of the libellant, or those for whom he ?

The Santa acts. Neither he nor they have ever incurred the Maria. 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

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