Argument for the defendant in error. complainant could do anything subsequently to impair them. The settlement of 1860 between those parties, and the judgment recovered upon the instrument then given, could have no retroactive effect, so far as the rights of trustee and cestui que trust were concerned. The court below, we think, properly dismissed the bill, and the decree is AFFIRMED. AVENDANO v. GAY. 1. A party in this court cannot allege as error in the court below, the admission of evidence offered by himself and objected to by the other side. 2. A statement of facts, made and filed by the judge several days after the issue and service of the writ of error in the case, is a nullity. v. Bonnemer (7 Wallace, 564), affirmed. ERROR to the Circuit Court of Louisiana. Generes Avendano brought suit in the court below against Gay; and, in the course of the trial, offered certain evidence, which was objected to by the defendant, but which was admitted, notwithstanding, by the court. The defendant excepted, and a bill of exceptions was sealed. A verdict was given against the plaintiffs, who brought the case here on error. The writ of error was allowed on the 9th of July, 1867. The citation was issued on the 10th, and served on the 11th. On the 16th of July, a "statement of facts," by the judge who heard the case, was filed, and the cause in this state here. was Mr. Durant, for the plaintiff in error, referring to the action of the court below in admitting the evidence, contended, that upon the case, as found by the court below, the judg ment ought to be reversed. Mr. Janin, contra, observing that the admission of the evidence was on the plaintiff's own offer, relied on Generes v. Bonnemer, as disposing of the case; quoting the following passage: * 7 Wallace, 564. Syllabus. "To permit the judge to make a statement of facts, on which the case shall be heard here, after the case is removed to this court by the service of the writ of error, or even after it is issued, would place the rights of parties, who have judgments of record, entirely in the power of the judge, without hearing and without remedy. The statement of facts, filed without consent of the parties, must be treated as a nullity; and, as there is nothing of which error of the court below can be predicated, the judgment must be affirmed." Mr. Justice MILLER delivered the opinion of the court. In order to show error in the proceedings in the Circuit Court, the counsel of the plaintiff in error, who was plaintiff below, has referred to a bill of exceptions taken by the defendant to the ruling of the court admitting evidence, offered by plaintiff against defendant's objection. If there was error in the ruling, it was at plaintiff's request, and to the prejudice of defendant, and can form no ground of reversing the judgment, which, notwithstanding this testimony, was for the defendant. Counsel also attempts to impugn the judgment, as not being supported by the facts of the case, and relies on what purports to be a statement of the facts found by the court. But the statement is filed in the court several days after the issue and service of the writ of error in this case, and is, therefore, a nullity, as we decided in the case of Generes v. Ponnemer. JUDGMENT AFFIRMED. THE BALTIMORE. 1. Restitutio in integrum is the leading maxim as to the measure of damages in cases of libel in admiralty, for injury to vessels, for collision: in other words, where repairs are practicable, the general rule is, that the damages shall be sufficient to restore the injured vessel to the condition in which she was at the time the collision occurred. And this rule does not allow deduction, as in insurance cases, for the new materials furnished in the place of the old. Statement of the case. 2. Although, if a vessel be sunk by collision in so deep water, or otherwise so sunk, that she cannot be raised and repaired, except at an expense equal, to or greater than the sum which she would be worth when repaired, the rule cannot apply, still the mere fact that a vessel is sunk is not, of itself, sufficient to show that the loss is total, nor to justify the master and owner in abandoning her and her cargo. 3. Courts of admiralty cannot properly allow counsel fees to the counsel of a gaining side in admiralty, as an incident to the judgment, beyond the costs and fees allowed by statute. Under the statute now regulating the fees of attorneys, solicitors, and proctors (the statute, namely, of 26th February, 1853, 10 Stat. at Large, 161), a docket fee of twenty dollars may be taxed, on a final hearing in admiralty, if the libellant recover fifty dollars, but, if he recovers less than fifty dollars, only ten. THE schooner Woolston, with a cargo of coal, and the steamer Baltimore, collided in the Potomac, on the 16th of December, 1863, and the schooner and her cargo sauk. The owners of the schooner accordingly libelled the steamer in the Admiralty Court of the District. The libel averred that the collision had been caused wholly by the steamer's fault, and that the schooner had sunk in such deep water as to make both her and her cargo a total loss, since the cost of raising either, or both, would be greater than its or their value. These allegations, both as to the fault and the total loss, the answer explicitly denied. The testimony as to the question of fault, need not be stated, since it appeared that a part of it was given below, was not in the record sent to this court, and the court therefore did not pass at all upon the merits. On the other matter, the matter of total loss, it rather showed that the water in which the schooner went down, was not so deep but that her masts were visible eighteen feet above the water, and that her position, as she lay, was clearly discernible. No proof was given of the fact of a total loss, further than that the vessel sunk. The court, regarding the steamer as in fault, entered a decree for the libellants, and, upon the report of a commissioner, decreed, as damages, notwithstanding exceptions by the respondents, the full value of the schooner and cargo, at the time of the collision, and awarded to the libellant's Argument for the steamer. counsel $500 as a fee. This decree having been affirmed by the Supreme Court in general term, the case was now here on appeal. Mr. Ashton, for the appellant: I. The most palpable error in law of the court below, and one considerable, as respects amounts, relates to the assessment of damages. The true measure of the damages, in this case, was the expense of raising and repairing the vessel, so as to make her equal to the value before the collision, and the expense of raising the cargo, and the amount of any deterioration which it might have undergone in consequence of the sinking. Mr. Justice Grier, in a collision case in the third circuit,* forcibly observes: "This is not the first instance in which I have had to notice that where one vessel has been so unfortunate as to come into collision with another, the parties injured suppose that the insurance doctrine of abandonment will apply to their case, and they may, therefore, increase the damages by their own neglect. We are all wise after the event, and if a judge can point out how the accident might have been avoided, the unfortunate party is condemned to pay the damage. But this amount cannot be increased by the negligence or folly of the injured party. only measure of damages is the amount it would cost to repair the damage, with some allowance for demurrage." In that case, the District Court had allowed the difference between the value of the vessel, before the collision, and the amount realized by the owners by a sale of the hull, after the collision. The decree was reversed by the Circuit Court, and the amount which it would have cost to repair the vessel was alone allowed. This principle was directly adjudged to be the correct one by this court, in the case of The Catharine,† where the court said, that in a case of a vessel sunk by a collision, the inquiry *The Harriet Rogers, A. D. 1867, 3 Wallace, Jr. † 17 Howard, 174; and see Williamson v. Barrett, 13 Id. 101. Argument for the schooner. to be made is, as to the practicability of raising the vessel and cargo, and repairing the former, and that the expense attendant thereon is the principal ingredient of the damage proper to be allowed. The court, in that case, condemn the principle which governed the court below in the present case, in respect to the damages; that is, that the owners of the schooner had a right to abandon her as a total loss, and look to the steamer for compensation. With this authority, there is no use of discussing further the law. The libel here alleged a total loss. The answer denied it. There was no evidence before the court on the point. It was not proved; and yet the court, without evidence, gave the full damages claimed. But this is not all. All the evidence in the case shows that the vessel probably, and the cargo certainly, which was coal, might have been raised. Numerous witnesses for the libellants spoke of having seen the masts, recognizing their color, and also of having seen sails of the schooner above water, as late as June, 1864, the collision having occurred in December, 1863. No effort was made by the libellants to raise either vessel or cargo; and no proof given to show that this was impossible, or that the cost would have been greater than their value. Of course, the coal could have been taken out without much expense. For these reasons alone, the decree should be reversed, and the case remanded for an inquiry as to the actual damage sustained, according to the legal principles heretofore applied by this court. [The counsel then went into an argument on the merits, unnecessary to be reported, as the judgment here was given on an assumption made for this hearing alone, that on this point the decree was correct.] II. The counsel fee was, perhaps, not warranted by any statute, or entirely correct practice. But the error, as to the measure of damages, is the error which we insist on. Messrs. Williams and Fendall, contra, contended, I. That while, of course, this court now had, under any |