Cotton Plaintiff in Error, versus Wallace

Cotton Plaintiff in Error, versus Wallace. WRIT of Error to thz Circuit Court, for the DiftricS of Georgia, to remove the proceedings .and decree in an Admiralty Caufe. At the laft Term the Decree of the Circuit Court had been affirmed, with cofts ; fubjedl: to the opinion of the Court, whether any, and what, damages ihall be allowed on the affirmance ? . On arguing this queftion,atthe prefent term, it appeared, that the Libel prayed for reftitution, “and all the damages and cofts that have arifen by occafion of the premifes ” that the Decree of.thc Circuit Court awarded reftitution,and that the Defendants do pay all the expences of this fuit; ” and that the Circuit Court affirmed the Decree of the Diftridt Court generally. .When the Decree of the Circuit Court was affirmed here, the Counfel for the Plaintiff fuggeftéd, that he was entitled to damages, and urged the Court to fándlion lome mode of affeffing them. This propolition, however, was rejected ; and, therefore, the Plaintiff in Error applied to the Circuit Court, where the prefiding Judge was in favor of appointing Auditors v but the Diftriñ Judge diffented' from the opinion. Under thefe circumftances, the Plaintiff in error, with notice to the Defendant, engaged fome refpedtable citizens to yalue and certify the damages ; and his counfel, Reed (of South-Carolina') now offered their certificate as the meafure proper to be adopted by the court; urging, that if the proceeding was' deemed irregular, further timé might be allowed, to afeertain the proper remedy for an evident right. ' JDu Ponceau, for the Defendant .in error, infilled, that the queftion of damages was exhibited on the libel; and that the decree of the Dittridt Court amounted to a negation of the claim. Damages cannot be included in the word “ expences,” which is fynonimouily and indifcriminately ufjd, ain the civil law, with the words cofts and charges. Clark. 15. 17. 87. Flayer. 87. But the caufe now comes before, this court on an affignment for error, that no rejlitution ought to have been awarded ; a plea in nulla ejl erratum, on which iffue was joined ; and upon that tiTue, 'there is a general affirmance of the decree below. The.proceedings, therefore, are complete, and the-jurifdidtion of the court expended, as toevery thing broughc into controverfy upon the record. But on principle,.independent of the peculiar irate of this caufe, the court has not a power to award general damages. The damages fpoken of in the 23d and 24th JeSlions of the judicial a£f, (1 vol. Swift’s Edit, p. 63.) can only apply to damages for delay, from the time of the^writ of error brought: It does not authorize an affeffment and decree for general, damages ; nor does it embrace a pro- . ceeding in rem, but only cafes,, in which a liquidated fum is given by the inferior court. Befides, if the Defendant in error has fuffered any extraordinary damages, for which there is not, at this time, any redrefs, it muit be imputed to his own fault. The decree of the Diftrifl^Court being in his favour, e might have applied for immediate reftitutionof the property on g'v‘ng fecur>fyj or he might have claimed damages. In the latter cafe, if the court had ordered its regifter to examine and report upon the amount, the Defendant in error would have been entitled to in'tereft upon it, if the ultimate decree of this court was in his favour, or, if the court below had. refufed the claim of damages, there mi'o-ht have been a crofs appeal, when the point would have 'been brought diredtly before- the Supreme Court, upon a writ of error to reverie that par£ of the •decree ; and if a reverfal had been pronounced, the caufe would, have been regularly remanded to the CircuitCourt to affefs the damages, under the 24th feclion of the judicial act. Even, indeed, if the Circuit Court had awarded damages, without af-foiling the amount, this court muff have- remanded the caufe. But how can the Defendant be allowed to claim general da- - mages on a writ of error brought' by his antagbnifi:; and in opposition to which, he .is fo far from alledging there was any error in the décree below, that he merely prays for an affirmance r And yet, to grant the. claim, is, in effefl, to reverie fo much of that very decree, which he thus prays may be entirely affirmed, as does not 'allow, and affefs, general damages in his favour. The affeffment of damages, is a matter peculiarly delicate. In the court below the fources of informationare eafily acceffible; but here there are no data-, fe that the enquiry, if at all foie-rated, can only be made- by affidavits, the worli mode of judicial inveftigation. The evil, however, does not occur, when nothing is left for this court to do, but to calculate the intereft on the fum previoufly afieiled and afcertained by the competent tribunal. After advifement, the chief justice delivered the opinion of the COURT, that where a judgment, or decree, was affirmed, on a writof error, there could be no allowance of damages, but for the delay} and, thereupon, the following order was made in this caufe: ■ Fatekson, Ju/U-t Do you mean to go out of the record to prove vonr damages; or is yotir eitiroate of damages founded upon avhat appears oa the record it felf? K'ed. The record does not fiiesv the extent of our damages, though ■the decreessilf entitle 11s to recover the full amount. We wiih, there-tore, by matter dibw¡ the record fin afeertain that amount. 2REDELL, Juftict. This Cafe is diftinguifiiable.from the cafe of Pennhal— loves. Doane(av/. <¡. 54) for there the damages were decreafed, to the benefit of the Plaintiff in error. In the cafe ofTalbot vs. Janfon, however, it appears f.om the Decree, that increafed damages were allowed to the Defendant in error. -•í/z/.p’ 133. chase, JuJHcc. In the cafe ofTalbot vs. Janfon, did the Court go back beyond the Decree of the Circuit Court, to- encreafe, the damages : or was the increafe allowed merely forthe delay in executing that Decree ? • Patetfox, JuJlict. In every cafe, in which there has been adjudged, either a decreafe, or an increafe of damages, the facts that regulated the decilion of the Court arofe and appeared upon the Record. I have always, however, entertained, and ftill entertain, great doubts, whether a writ of error is the proper remedy, to remove an Admiralty caufe. On this remark, t.he other Connfel employed (Lewis and E. Tilghman, forthe Plaintiff in error, and Ingerfoll for the Defendant in error) lefc the general queftion of damages, to the Court on the argument already ftated, and entered into a difeuffion upon the regularity of the prorefs-by which the caufe had been removed. See p»ft H'ijcatt et at. vs. JJw-shy, Jennings et aU vs. The Brig Terjcvci anee. [MAJORITY — By the Court.] By the Court. It is ordered, that the Defendant in error recover as damages againft the Plaintiff in error the fum of 3)515 dollars and 11⅝cents, being the intereft on 34,841 dollar^ and cents, the amount.of the fales of the brig Ever ton and her cargo, from the 5th of May, 1795, the date of the decree of the Circuit Court in the faid _caufe, being 1 year, 3 months aud 4 days, at the rate of 8 per cent per annum: And, alfo, that the faid Plaintiff in error, do pay the cofts accrued in this caufe fince the laft term. And a fpecial mandate is awarded to carry this order into execution.