Supreme Court of United States.
*313 Mr Ogden, for the appellees.
*316 Mr Justice STORY delivered the opinion of the court.
This case was formerly before this court, upon an appeal taken by the original libellants, the American and Ocean Insurance Companies, to the decree of the circuit court, awarding restitution of the property to the claimant, Canter, with costs. That decree was affirmed by this court, and a mandate issued to the circuit court, commanding "that such execution and proceedings be had in said cause, as according to right and justice, and the laws of the United States, ought to be had, the appeal notwithstanding." The case is reported at large in 1 Peter's Rep. 547.
When the case came before the circuit court upon the mandate, Canter made an application to the court to refer the same to the proper officer to examine into the damages sustained by him in consequence of the proceedings of the libellants, and to report thereon. A reference was accordingly made to the register to ascertain the damages; and when the case came on before him, the libellants entered a protest against any such proceedings, upon the grounds that the mandate gave no authority to inquire into damages; that none had been in fact awarded, either by the district, *317 circuit, or supreme court; and that the libellants were not in any manner liable for damages. The register, notwithstanding the protest, proceeded to inquire into the damages, and made his report thereon to the circuit court, where the same grounds of objection were again taken by the libellants. The court upon the hearing, asserted the right to inquire into the damages, as a matter undisposed of in the former decree; but denied any allowance of them upon the merits, and decreed costs and expenses only to the claimant. From this last decree both parties have appealed to this court; and the case now stands before us for judgment upon these cross appeals.
It is proper to add, that the libellants in their original libel prayed that the three hundred and fifty-six bales of cotton might be decreed to them, with damages and costs; and that the claimant Canter, in his claim, also prayed for restitution of the cotton, with damages and costs. The district court decreed restitution to the libellants of part of the cotton, and dismissed the libel as to the residue, without any award of damage on either side. Both parties appealed from this decree to the circuit court; where, upon the hearing, the decree of the district court was reversed, and restitution of all the cotton was decreed to Canter, with costs, (as has been before mentioned;) but without any award of damages, or any express reservation of that question in the decree.
Two questions have been made and argued at the bar. The first is, whether, under the circumstances, the inquiry into damages could be entertained by the court below, after the cause was remanded for execution by the mandate of this court. The second is, whether, if such proceedings could be had, the present is a fit case for damages.
In respect to the last question, if we felt at liberty to entertain it, we should have no difficulty in concurring in the opinion of the circuit court, that this case was not a fit one for an award of damages. The proceedings of the libellants were in the ordinary course, to vindicate a supposed legal title to the property. There is no pretence to say, that the *318 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. They have failed; not so much from any infirmity in their original title, as from the sentence of a court, of competent jurisdiction, (whose very jurisdiction was the matter in question), having been adjudged to be conclusive upon that title. Where parties litigate in the admiralty, and there was a probable ground for the suit or defence; the court consider 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, as was justly observed in the opinion of the circuit court, damnum absque injuria.
But we are of opinion, that the question of damages is not now open before this court. The original decree of restitution with costs, without any allowance of damages, or any express reservation of that question, was a virtual denial of damages, and a final decree as to the demand of damages set up by Canter in his original claim. It was his duty at that time to have filed a cross appeal, if he meant to rely upon his claim for damages; and not having then done so, it was a waiver of the claim, and a submission to the decree of restitution and costs only. It is of great importance to the due administration of justice, and is 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, upon successive appeals. It would occasion very great delays, and oppressive expenses. We have already had occasion to advert to this subject in the cases of the Santa Maria, 10 Wheat. Rep. 481. The Palmyra, 10 Wheat. Rep. 502. Chace vs. Vasquez, 11 Wheat. Rep. 429. We wish it now to be understood by the bar, as the settled practice of this court, that wherever damages are claimed by the libellant or the claimant in the original proceedings, if a decree for restitution and costs only passes, it is a virtual *319 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.
As to the costs and expenses, we perceive no error in the allowance of them in the circuit court. They are not matters positively limited by law, but are allowed in the exercise of a sound discretion of the court. And, besides, it may be added, that no appeal lies from a mere decree respecting costs and expenses.
The decree of the circuit court is therefore affirmed with costs.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of South Carolina, and was argued by counsel; on consideration whereof, it is ordered and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed, without costs, for the libellants.
