RACHEL CANTER, ADMINISTRATRIX OF DAVID CANTER, DECEASED, CLAIMANT US. THE AMERICAN INSURANCE COMPANY AND OCEAN INSURANCE COMPANY OF NEW YORK, APPELLANTS.

The libellants, in their original libel in the district court of the United States for the district of South Carolina, prayed that certain bales of cotton might be decreed to them with damages and costs. Canter, who also claimed the cotton, prayed the court for restitution, with damages and costs. The district court decreed restitution of part of the cotton to the libellants, and dismissed the libel, without any award of damages on either side. Both parties appealed from this decree to the circuit court, where the decree of the district court was reversed, and restitution of all the cotton was decreed to Canter, with costs; without any award of damages, or any express reservation of that question in the decree. From this decree the libellants in the district court appealed to this court; no appeal was entered by Canter. Held, that the question of a claim of damages by Canter is not open before this court. The decree of restitution, without any allowance of damages, was a virtual denial of them, and a final decree upon Canter's claim of damages. It was his duty, at that time, to have filed a cross appeal, if he meant to rely on a clain to damages; and not having done so, it was a submission to the decree of rest'tution and costs only.

The counsel fees allowed as expenses attending the prosecution of an appeal to the circuit court and to the supreme court, in an admiralty case. This is not a proper case for the award of damages. The proceedings of the libellants were in the ordinary course to vindicate a supposed legal title. There is no pretence to say that the suit was instituted without probable cause, or was conducted in a malicious or oppressive manner. The libellants had a right to submit their title to the decision of a judicial tribunal, in any legal mode which promised them an effectual and speedy redress. Where parties litigate in the admiralty, and there was a probable ground for the suit or defence, the court considers the only compensation which the successful party is entitled to, is a compensation in costs and expenses. If the party has suffered any loss beyond these, it is damnum absque injuria. [318] It is of great importance to the due administration of justice, and in furtherance of the manifest intention of the legislature, in giving appellate jurisdiction to this court upon final decrees only, that causes should not come up here in fragments or successive appeals. It would occasion very great delays and op. pressive expenses. [318]

The settled practice of this court is, that whenever damages are claimed by the libellant or the claimant in the original proceedings, if a decree of restitution and costs only passes, it is a virtual denial of damages; and the party will be deemed to have waived the claim for damages, unless he then interposes an appeal or cross appeal to sustain that claim. [318]

Costs and expenses are not matters positively limited by law, but are allowed in the exercise of a sound discretion of the court; and no appeal lies from a mere decree respecting costs and expenses. [319]

[Canter vs. The American and Ocean Insurance Companies.] THIS case was heard at January term 1828, upon questions submitted to the court, on an appeal from the circuit court of the district of South Carolina. 1 Peters, 511. The court then decided in favour of the claimant, and directed restitution of the cotton, which was the subject of the controversy between the parties; having affirmed the decree of the circuit court of South Carolina. By the mandate to the circuit court it was ordered, "that such execution and proceedings be had, as according to right and justice, and according to the laws of the United States, ought to be had." Upon the filing of the mandate the circuit court ordered, "that the case be put on the docket, and it be referred to the officer of this court to examine into the damages sustained by the claimant, David Canter, in consequence of the proceedings of the libellants, and report thereon at as early a day as possible to this court.

The appellant, David Canter, thereupon filed in the circuit court "a statement of damages sustained by him, by the illegal seizure of three hundred and fifty-six bales of cotton, by order of the underwriters."

The statement set forth losses on the sales of the cotton, and expenses and payments connected with the same, amounting to $3639 87. Losses and probable gain on sales of rice purchased by the appellants, and which was sold instead of being shipped, in consequence of the proceedings of the appellees; the cost of protest and damages on a bill of exchange drawn by him, and dishonoured in consequence of the seizure of the cotton; law expenses at Charleston and Columbia, in South Carolina, and in Washington, and travelling expenses to and in Washington; papers from Key West, relative to judicial proceedings there; postages and protests, costs of the supreme court of the United States, ana briefs; loss in the value of the cotton during the pendency of the proceedings, $2860.

The counsel for the appellees filed with the register of the court a protest against the order of reference made by the circuit court, to ascertain the damages alleged to have been sustained by the appellant, on the grounds, 1. That the mandate of the supreme court of the United States gives no

[Canter vs. The American and Ocean Insurance Companies.] authority or instructions to the circuit court to inquire into damages. 2. That the decrees of the district, circuit, and supreme court, do not award damages to the appellant. 3 That the appellees were not in any manner liable for damages. 4. That at all events, the inquiry into damages cannot extend beyond the amount of the stipulations entered into by the appellees in the original proceedings, by which alone they are before the court.

The clerk of the circuit court refused all the claims preferred by the appellant, with the exception of the following: Papers from Key West, to establish legality of proceedings there $51, postages and protests $20,

Costs of the supreme court and briefs $72 02, protest and damages on bill drawn by claimant $222,

This grew out of the cotton speculation, the bill was dishonoured in consequence of the seizure, the claimant not being in funds to take up the draft.

Counsel fees; at Charleston and Washington,

$71, 00

294 02

1150 00

$1515 02

Also the loss on the sale of the cotton, which was made before the proceedings were instituted against the cotton, and which sale was not completed by reason of the same, with interest on the balance of the sale after deducting the actual proceeds of the cotton, when sold by order of the district court $3991 77; and also the actual loss on the rice purchased, to be paid for out of the proceeds of the cotton, rejecting the claim of probable profits, the sum actually allowed being $2820 67.

These allowances were all excepted to by the appellées, and the appellant also excepted to the refusal of the clerk of the circuit court to admit all of the claims preferred in "the statement."

The circuit court refused to allow to the appellant any of the items reported by the clerk, with the exception of some of those comprehended in the "incidental expenses." As to

[Canter vs. The American and Ocean Insurance Companies.] those items, the clerk rejected the sum of $222 for protests and damages on a bill of exchange, and ordered the counsel fees of the appellant to be paid under the mandate, upon the authority of the Apollon, 9 Wheat. 362, as the costs awarded him by the supreme court $1372 82.

The appellant appealed to this court.

At the last term Mr Cruger moved to dismiss the appeal, on the ground that the mandate from this court gave no authority to the circuit court of south Carolina to assess damages to the appellant. This motion was opposed by Mr Coxe, for the appellant; and the court ordered the cause to be argued upon all the questions it involved, when it should be regularly called.

At this term, Mr Coxe for the appellant contended; that the decree of the circuit court from which the former appeal was taken, left the question of damages open. That appeal was taken by the claimants in the circuit court, now the appellecs, and it was from a decree, in its nature interlocutory, and not final; and if this was not so, it was the act of those who are now appellees, and cannot prejudice the rights of the appellant.

In the case now before the court, the appeal has been taken by Canter only, and not by those who claimed the cotton. The only question therefore in this court is, whether sufficient damages have been awarded, as no cross appeal was entered, and there can be no inquiry whether damages may be assessed at all; this having been decided in the circuit court. The appellee cannot here impugn the decree below upon this point.

Is this then a case for damages, or rather for full compensation ?

The entire record now before this court; the pleadings and the evidence which were under consideration during the last term, still constitute a part of the case upon which the decision must be based.

It will be recollected that the claimant became the proprietor of the cotton at Key West, where it was found in the possession of certain salvors. The libellants were present, by

[Canter vs. The American and Ocean Insurance Companies.1

their agent, who was cognizant in the proceedings, acquiesced in them, and received the portion of the proceeds of sale to which they were entitled. The captain of the wrecked vessel was also present, and all participated in what was done there.

No proceedings were ever instituted by the libellants against the authors or abettors of the acts of which they complained. No attempt was ever made to arrest them in the progress of the business, to punish them afterwards, or to pursue the money in their hands. All was reserved for this innocent purchaser. Innocent he was, for this court has decreed the sale to be valid, and his title to be incontrovertible; innocent as regards them, for he did no one act in which they had not concurred.

They avowed their object to be to break up these proceedings at Key West; and this was to be effected by the ruin of this claimant.

This court has definitively settled the question of right between these parties; the libellants had no interest in the cotton, the subject matter of the suit. It was the property of the claimant.

In the prosecution of this suit against him, however, he has been deprived of this property; he has incurred heavy expenses and losses, and he asks not vindictive damages; he asks nothing nomine pœnæ; he merely asks to be placed in the situation he would have occupied had these proceedings never been instituted against him. He claims in fact nothing which may not properly be awarded under the name of restitution. This is emphatically the case in regard to the first item. The property has long since been disposed of; it probably has no longer an existence; restitution in specie must be had; the mandate of this court cannot be literally executed.

This has been rendered impracticable by the acts of libellants. They seized upon the article; they withdrew it from the control of the claimant. While thus retained by them, it is so disposed of, that the owner can never be restored to the actual enjoyment of it. What then are his rights. and what will satisfy the order of this court that the property shall be restored?