Opinion
AUGUST TERM, 1796.
Du Ponceau, for the Defendant in error, insisted, that the question of damages was exhibited on the libel; and that the decree of the District Court amounted to a negation of the claim. Damages cannot be included in the word "expences," which is synonimously and indiscriminately used, in the civil law, with the words costs and charges. Clark. 15. 17. 87. Floyer. 87. But the cause now comes before this court on an assignment for error, that no restitution ought to have been awarded; a plea in nullo est erratum, on which issue was joined; and upon that issue, there is a general affirmance of the decree below. The proceedings, therefore, are complete, and the jurisdiction of the court expended, as to every thing brought into controversy upon the record. But on principle, independent of the peculiar state of this cause, the court has not a power to award general damages. The damages spoken of in the 23d and 24th sections of the judicial act, (I, vol. Swist'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 assessment and decree for general damages; nor does it embrace a proceeding in rem, but only cases, in which a liquidated sum is given by the inferior court. Besides, if the Defendant in error has suffered any extraordinary damages, for which there is not, at this time, any redress, it must be imputed to his own fault. The decree of the District Court being in his favour, he might have applied for immediate restitution of the property on giving security; or he might have claimed damages. In the latter case, if the court had ordered its register to examine and report upon the amount, the Defendant in error would have been entitled to interest upon it, if the ultimate decree of this court was in his favour, or, if the court below had refused the claim of damages, there might have been a cross appeal, when the point would have been brought directly before the Supreme Court, upon a writ of error to reverse that part of the decree; and if a reversal had been pronounced, the cause would have been regularly remanded to the CircuitCourt to assess the damages, under the 24th section of the judicial act. Even, indeed, if the Circuit Court had awarded damages, without assessing the amount, this court must have remanded the cause. But how can the Defendant be allowed to claim general damages on a writ of error brought by his antagonist; and in opposition to which, he is so far from alledging there was any error in the decree below, that he merely prays for an affirmance? And yet, to grant the claim, is, in effect, to reverse so much of that very decree, which he thus prays may be entirely affirmed, as does not allow, and assess, general damages in his favour. The assessment of damages, is a matter peculiarly delicate. In the court below the sources of information are easily accessible; but here there are no data; so that the enquiry, if at all tolerated, can only be made by affidavits, the worst mode of judicial investigation. The evil, however, does not occur, when nothing is left for this court to do, but to calculate the interest on the sum previously assessed and ascertained by the competent tribunal.
IREDELL, Justice. This Case is distinguishable from the case of Penuhallow vs. Doane ( ant. q. 54) for there the damages were decreased, to the benefit of the Plaintiff in error. In the case of Talbot vs. Janson, however, it appears from the Decree, that increased damages were allowed to the Defendant in error. Ant. p. 133.
CHASE, Justice. In the case of Talbot vs. Janson, did the Court go back beyond the Decree of the Circuit Court, to encrease, the damages; or was the increase allowed merely for the delay in executing that Decree?
Paterson, Justice. In every case, in which there has been adjudged, either a decrease, or an increase of damages, the facts that regulated the decision of the Court arose and appeared upon the Record. I have always, however, entertained, and still entertain, great doubts, whether a writ of error is the proper remedy, to remove an Admiralty cause.
On this remark, the other Counsel employed (Lewis and E. Tilghman, for the Plaintiff in error, and Ingersoll for the Defendant in error) left the general question of damages, to the Court on the argument already stated, and entered into a discussion upon the regularity of the process by which the cause had been removed. See post Wiscart et al. vs. Dauchy. Jennings et al. vs. The Brig Perseverance.
WRIT of Error to the Circuit Court, for the District of Georgia, to remove the proceedings and decree in an Admiralty Cause. At the last Term the Decree of the Circuit Court had been affirmed, with costs; subject to the opinion of the Court, whether any, and what, damages shall be allowed on the affirmance? On arguing this question, at the present term, it appeared, that the Libel prayed for restitution, "and all the damages and costs that have arisen by occasion of the premises" that the Decree of the Circuit Court awarded restitution, "and that the Defendants do pay all the expences of this suit;" and that the Circuit Court affirmed the Decree of the District Court generally. When the Decree of the Circuit Court was affirmed here, the Counsel for the Plaintiff suggested, that he was entitled to damages, and urged the Court to sanction some mode of assessing them. This proposition, however, was rejected; and, therefore, the Plaintiff in Error applied to the Circuit Court, where the presiding Judge was in favor of appointing Auditors; but the District Judge dissented from the opinion. Under these circumstances, the Plaintiff in error, with notice to the Defendant, engaged some respectable citizens to value and certify the damages; and his counsel, Reed (of South Carolina) now offered their certificate as the measure proper to be adopted by the court; urging, that if the proceeding was deemed irregular, further time might be allowed, to ascertain the proper remedy for an evident right.
PATERSON, Justice Do you mean to go out of the record to prove your damages; or is your estimate of damages founded upon what appears on the record itself?
Reed. The record does not show the extent of our damages, though the decree will entitle us to recover the full amount. We wish, therefore, by matter dehors the record to ascertain that amount.
After advisement, THE CHIEF JUSTICE delivered the opinion of THE COURT, that where a judgment, or decree, was affirmed, on a writ of error, there could be no allowance of damages, but for the delay; and, thereupon, the following order was made in this cause:
BY THE COURT. It is ordered, that the Defendant in error recover as damages against the Plaintiff in error the sum of 3,515 dollars and 11 cents, being the interest on 34,841 dollars and 55 cents, the amount of the sales of the brig Everton and her cargo, from the 5th of May, 1795, the date of the decree of the Circuit Court in the said cause, being 1 year, 3 months and 4 days, at the rate of 8 per cent per annum: And, also, that the said Plaintiff in error, do pay the costs accrued in this cause since the last term. And a special mandate is awarded to carry this order into execution.