Himely v. Rose

• Court: U.S. Supreme Court
• Writing for the Court: MARSHALL
• Citation: Himely v. Rose, 5 Cranch 313, 3 L.Ed. 111, 9 U.S. 313 (1809)
• Decision Date: 01 February 1809
• Parties: HIMELY v. ROSE

9 U.S. 313

5 Cranch 313

3 L.Ed. 111

HIMELY v. ROSE.

February Term, 1809

THIS was an appeal from so much of the final sentence of the circuit court for the district of South Carolina, rendered upon the mandate from this court issued upon the reversal of the former sentence of that court, (see ante, vol. 4. p. 292.) as affirmed the report of auditors appointed by the court 'to inquire and report whether any, and if any, what deductions are to be allowed for freight, insurance and other expenses which would have been incurred by the owners in bringing the cargo into the United States, and also to ascertain and report the interest to be paid by the claimant to the appellant,' so far as that report allowed interest to the appellant, and disallowed the expenses of insurance to the claimant.

This court, in reversing the former sentence of the circuit court, decreed as follows: that the Sarah and her cargo 'ought to be restored to the original owners, subject to those charges of freight, insurance and other expenses which would have been incurred by the owners in bringing the cargo into the United States; which equitable deductions the defendants are at liberty to show in the circuit court. This court is therefore of opinion, that the sentence of the circuit court of South Carolina ought to be reversed, and the cause be remanded to that court in order that a final decree may be made therein conformably to this opinion.'-

Upon receiving the mandate from this court to carry its sentence of reversal into effect, the circuit court directed a reference to auditors in the terms above stated; and the auditors reported 'that the claimant is not entitled to any insurance, but that he ought to be allowed freight on the cargo at the rate of one cent per pound for such of it as was in bags, and one and a half cent per pound for such of it as was in casks, and also the sum of 500 dollars for expenses incidental to the landing, wharfage, storage, &c. of the cargo, which sums being deducted from the amount of the decree, the claimant must pay the appellant two years' interest on the residue at the rate of seven per cent. per annum.'

Martin and Jones, for Himely, the appellant.

After the express mandate of this court, directing the allowance of freight and insurance, the court below ought not to have referred it to auditors to say whether any thing should be allowed for insurance.

The mandate was silent as to interest; indeed, as the proceeding was in rem, and the decree for restitution, interest could not have been given.

LIVINGSTON, J. Can this court take notice of these errors in the report, if no exception were taken in the court below?

Martin. There were no particular items to which an exception was necessary. The error appears palpably upon the face of the proceedings. And this court, in the case of Murray v. The Charming Betsy. (ante, vol. 2. p. 124.) decided, that exceptions are not necessary if the error appear upon the face of the report itself.

Besides, in an appeal from a sentence of a court of admiralty, the question of fact is opened as well as the question of law.

MARSHALL, Ch. J. Nothing is before this court but what is subsequent to the mandate.

Martin. The auditors have allowed nothing for the expenses of the cargo at St. Jago de Cuba; Himely was as much entitled to those expenses under the decree of this court, as to those incurred in this country.

C. Lee, contra.

There were no exceptions to the report in the court below. It was there regularly confirmed by that court, whose decree ought to be affirmed in this, unless the directions of the mandate have been counteracted in one or both the particulars of which the appellant complains.

The mandate left the claim of insurance open to be adjusted in the circuit court, and unless insurance was proved to have been actually made, nothing should be allowed on that account.

It is now to be presumed and taken as an admitted fact, that no insurance was made by the appellant.

The interest was properly allowed, unless good reason can be shown in equity why it should not be paid. According to modern usage in commercial controversies, interest is deemed an inseparable incident to the principal debt, the payment whereof is wrongfully delayed. This being the general rule, and the mandate being silent, the allowance of interest is unobjectionable. As the claimant was to have the benefit of equitable deductions, he ought to be subjected to equitable charges. He has had the use of the money, and the other party has lost the interest of it.

The freight and other charges, as well as the value of the cargo, having been amicably arranged by the parties, and there being no appeal as to them, they are not now to be the subject of inquiry or decision.

Upon the question of interest, Mr. Lee cited 3 Dal. 332. Hills v. Ross, and 4 Dal. 289. Crawford v. Willing and Morris.

March 10.

MARSHALL, Ch. J. delivered the opinion of the court as follows:

A decree having been formerly rendered in this cause, the court is now to determine whether that decree has been executed according to its true intent and meaning.

That decree directed 'the cargo of the Sarah to be restored to the original owners, subject to those charges of freight, insurance and other expenses which...