damages. The allowance of interest, therefore, in the court below, is overruled." Besides, in that case, the court had all the questions of equitable deductions and allowances before them on the original appeal, and gave a very special decree and mandate, which, ex industria, omitted interest. But here the question is not between two equally innocent parties. Here none of the questions of freight, insurance, duties, and interest, were raised in the original cause. They were all reserved as incidental to the stipulation, which was not then brought before this court.

where the capturing claimant has superadded to the original wrong done to the owners of these goods, all the unjust dilatoriness of chicane.1

Mr. Justice STORY delivered the opinion of the court, and after stating the case, proceeded as follows:

Several preliminary questions have been argued, which must be disposed of before the court can entertain any question upon the merits of these claims; and if disposed of one way, they put an end to the controversy.

The doctrine laid down in Rose v. Himely, In the first place, it is asserted that Mr. Burke that after a decrce in this court, and the cause is a male fidei claimant, entitled to no favor sent by mandate to the court below, and the whatever; and by reference to the original profurther proceedings upon the mandate are ap- ceedings, *will be found a party to the [*442 pealed from, nothing is before this court on the wrongful capture and detention of the properappeal but what is subsequent to the mandate, ty. And the first question, therefore, that is unquestionably a sound and salutary rule. arises, is, whether upon this appeal the court But is it anything more than what the general can look into those proceedings for the purpose principles of law would establish? Is it any- of ascertaining the guilt or innocence of the thing more than an application of the familiar claimant. The principle laid down in the case 440*] maxim as to res *adjudicata? "Noth of Rose v. Himely (5 Cranch, 313), that upon ing is before this court," says the Chief Justice, an appeal from a mandate, nothing is before "but what is subsequent to the mandate." This the court but the proceedings subsequent to the is unquestionably true, but with this indispen- mandate, is undoubtedly correct in the sense in sable qualification, that the matter in question which that expression was used, with reference prior to the mandate was, or ought necessarily to the doctrine of that case. Whatever had to have been, before the court originally. The been formerly before the court, and was disrule was applied to the claims of freight and in- posed of by its decree, was considered as finsurance which the original decree of this court ally disposed of; and the question of interest had expressly allowed, but which the commis- raised upon the execution of the mandate in sioner appointed by the Circuit Court under the that case, was in that predicament. But upon mandate had disallowed. But no case can be all proceedings to carry into effect the decree found which requires the court below to pass of the court, the original proceedings are alany decree, in the first instance, upon the stip-ways before the court, so far as they are necesulation, or to allow interest before the appeal, or which requires the question of interest, or any similar incidental claim, to be brought before this court upon the original appeal. The rule in regard to matters prior or subsequent to the mandate, appears to be understood precisely in this manner by the learned judge who de livered the opinion of the court in Martin v. Hunter. "A final judgment of this court is conclusive upon the rights which it decides, and no statute has provided any process by which this court can revise its own judgments." The claim for interest is an incident to the execution of the mandate for restitution. Interest is impliedly due, wherever a liquidated sum of money is wrongfully withheld. "If a man has my money by way of loan, he ought to answer interest; but if he detains my money 441*] wrongfully, he ought, a fortiori, to answer interest; and it is still stronger, when one by wrong takes from me my money or Another preliminary question is, whether the goods, which I am trading with, in order to subject-matter of these claims is, in this stage turn them into money. Were not this the of the cause, open for discussion. All the case, a strong temptation would be presented claims of Mr. Burke might certainly have been to debtors to violate their duty. In the lan- brought forward and insisted upon in the origguage of Lord Mansfield, they would be en-inal proceedings. If his right to the property couraged to make use of all the unjust dilatori ness of chicane, and the more the plaintiff is injured, the less he will be relieved." This is emphatically applicable to the present case,

1.-5 Cranch's Rep. 317.

2.-1 Wheat. Rep. 304, 354.

3.-1 P. Wms. 396; see also 1 Binn. Rep. 494; 9 Johns. Rep. 71; 11 Mass. Rep. 504; 1 N. H. Rep.

180.

sary to determine any new points or rights in controversy between the parties, which were not terminated by the original decree. The court may, therefore, inspect the original proceedings, to ascertain the merits or demerits of the parties, so far as they bear on the new claims, and must decide upon the whole examination what its duty requires. In the present case, it is impossible to separate the stipulation from the other proceedings. It is unintelligible without reference to them. The court must inspect them, to guide it in its future acts, and to enable it to carry into effect the decree of the Supreme Court. That *decree re- [*443 stores the property generally as claimed by the libelant; but what that property is, in what predicament it is, and what are the means by which it is to be restored, must be ascertained, before the court can institute any farther proceedings.

was not established, still he might be entitled to equitable deductions for meliorations or charges; and if these claims were favored by the court, the degree of restitution would have

the illegal seizure and detention of property; and, indeed, in cases of tort, if given at all, interest partakes of the very nature of damages. The ground now assumed is, that interest ought to be given since the date of the stipulation, or, at all events, since the decree of restithe property during this period, and it is but a just compensation to the libelant for the delay and loss he has sustained by the dispossession. It might have been just and proper for the court below to have refused the delivery of the property upon stipulation, unless upon the express condition that the same should carry interest, if so decreed by the court. And, in cases of this nature, it appears to us [*446 highly proper that such a clause should be inserted in the stipulation. But the present stipulation contains no such clause, and, therefore, so far as respects the principal and sureties, to decree it upon that, would be to include a liability not justified by its terms. It is true, that interest might be decreed against Mr. Burke personally, not as the stipulator, but as the claimant in the cause; but then it would be by way of damages for the detention or delay. In this view, it was a matter open for discussion upon the original appeal; and no interest having been then asked for or granted, the claim is finally at rest. What was matter formerly before the court cannot again be drawn into controversy.

been subject to these deductions. They would then have constituted a lien upon the property, and the Circuit Court must have enforced it. But no such claims were insisted upon in the written allegations, or even vira voce at the hearing; the omission was voluntary, and the decree of restitution passed in the most abso-tution, because the claimant has had the use of lute and unconditional form. The consequences of now admitting them to be brought before this court by appeal, would be most inconvenient and mischievous in practice. It would encourage the grossest laches and delays. The party might lie by through the whole progress of the original cause until a final decree, hold ing the real owner out of his property, and securely enjoying, as in this case, the profits, and then start new claims for future investigation which would protract the final decision to an 444*] indefinite period. Such a *course would have a tendency justly to bring into disrepute the administration of justice, and inflict upon the innocent all the evils of expensive litigation. We think, therefore, that upon principle, every existing claim which the party has omitted to make at the hearing upon the merits and before the final decree, is to be considered as waived by him, and is not to be enter tained in any future proceedings; and when a decree has been made, which is in its own terms absolute, it is to be carried into effect according to those terms, and excludes all inquiry between the litigating parties as to liens or claims which might have been attached to it by the court, if they had been previously brought to its notice. These remarks apply as well to the claim for freight as the other items. Mr. Burke, as the importer of the goods, would, if the carrier ship had belonged to a mere stranger, have been directly responsible for the freight, and would have been entitled to bring it forward in the original suit as an equitable charge. It can make no difference in his favor, that he was, as he now asserts himself in his petition to be, a joint owner of the vessel with Mr. Forbes. Whether, as between himself and his co proprietor, he would be liable to pay any freight, does not appear, for the petition is naked of any proofs, and he may have occupied only his own portion of the vessel. Nor is there any evidence adduced that Mr. Forbes was really a joint owner; and in his original claim, Mr. Burke expressly asserts the vessel to be his own, in terms which, imply a sole pro445*] prietary interest. *But without relying on these circumstances, it is sufficient to say that it is too late for Mr. Burke in any way to assert the claim for freight, and if payable at all, he must now bear the burthen occasioned by his own laches.

This view of the subject makes it wholly unnecessary to enter upon the inquiry how far Mr. Burke is an innocent possessor of the property in controversy, and, as such, entitled to equitable deductions and charges. The claim, whether a lien, or a mere equity, has been totally displaced by the unconditional decree of restitution.

The same doctrine applies to the claim of interest made by the libelant. The question was involved in the original proceedings, and the libel itself contains an express prayer for damages, as well as for restitution of the property. Damages are often given by way of interest for

We have considered these questions thus far upon principle. But they have been already decided by this court. The case of Rose v. Himely (5 Cranch's Rep., 313) is directly in point. The authority of that case has not been in the slightest degree impugned, and, without overthrowing it, this court could not now entertain the present claims. We are not disposed to doubt the entire correctness of that adjudication.

The question in regard to the duties, admits of a very different consideration. The decree of restitution awards to the libelant the whole property in controversy, and nothing more. Upon the face of the proceedings it appears that the stipulation was taken for the appraised value of the property, including the duties paid to the United States by the claimant. The amount of those duties never consti- [*447 tuted any part of the property of the libelant, or those for whom he acts. Neither he nor they have ever incurred the charge, or made the advance. And if it is now given to the libelant, it is a sum beyond the value of the property, which has been paid upon the importation without his aid, and without any injury to him or his principal. It is true, that in the hands of the claimant the property may be assumed to be worth the whole appraised value; but that value includes not only the value of the property, per se, but the amount of the duties already paid by the claimant. In receiving it, the claimant has received no more of the libelant's property than the sum, deducting the duties already paid. It has been said that the property was wrongfully brought to the United States by the claimant, and, therefore, he is not entitled to favor. This might be a satisfactory answer to any attempt of the claimant to charge the libelant with the duties as an equit able charge. But no such claim has been as

paramount to the title of the defendant; and | tained is immaterial, because not a breach of (2d) the said declaration is, in other respects, the covenant, and, the majority of the court defective, uncertain and informal." is disposed to think, may be disregarded on a general demurrer.

The covenant stated in the declaration is, we think, a covenant of warranty, and not a covenant of seisin, or that the vendor has title. In an action on such a covenant, it is undoubted ly necessary to allege, substantially, an eviction by title paramount, but we do not think 452*] that any *formal words are prescribed, in which this allegation is to be made. It is not necessary to say, in terms, that the plaintiff has been evicted by a title paramount to that of the defendants. In this case, we think such an eviction is averred substantially. The plaintiffs aver" that the said Obadiah had not a good and sufficient title to the said tract of land; and by reason thereof, the said plaintiffs were ousted and dispossessed of the said premises by due course of law." This averment, we think, contains all the facts which constitute an eviction by title paramount. The person who, from want of title, is dispossessed and ousted by due course of law, must, we think, be evicted by title paramount.

*It is the opinion of the court that [*454 the fourth and fifth counts, however informal, have substance enough in them to be maintained against a general demurrer. and that the judgment must be reversed, and the cause remanded for further proceedings. It will be in the power of the Circuit Court to allow the parties to amend their pleadings.

Judgment reversed accordingly.

Cited 4 How. 154; 2 Blatchf. 34.

[LOCAL LAW.]

M'DOWELL v. PEYTON ET AL.

land lies between those forks.

APPEAL from the Circuit Court of Ken

The following entry, "J. T. enters 10,000 acres of land, on part of a treasury warrant, No. 9759, to be We think, then, that the special cause as laid off in one or more surveys, lying between signed for the demurrer will not sustain it. Stoner's Fork and Hingston's Fork, about six or seven miles nearly north-east of Harrod's Lick, at There are other defects in the declaration two white-ash saplings from one root, with the letwhich are supposed by the counsel for the de- ter K marked on each of them, standing at the fendants in error to be sufficient to support the forks of a west branch of Hingston's Fork, on the east side of the branch; then running a line from judgment. The plaintiffs claim both as heirs said ash saplings, south 45 degrees east, 1,600 poles: and devisees, and do not show in particular thence extending from each end of this line north how they are heirs, nor do they set out the will. 45 degrees east, down the branch, until a line nearIt is undoubtedly true, that their title cannot1y parallel to the beginning line shall include the quantity of vacant land, exclusive of prior claims,” be in both characters, and that the will, if it is not a valid entry, there being no proof that the passes the estate differently from what it would two white-ash saplings from one root, with the pass at law, defeats their title as heirs. But a forks of a west branch of Hingston's Fork," had letter K marked on each of them, standing at the man may devise lands to his heirs, and the acquired sufficient notoriety to constitute a valid statement that they are his heirs, as well as his call for the beginning of an entry, without further devisees, though not a strictly artificial mode aid than is afforded by the information that the of declaring, is an error of form and not of substance. Of the same character is, we think, the omission to state how the plaintiffs are heirs, or 453*] to set out the will. Although in the case of Denham v. Stephenson (1 Salk., 355; 6 Mod., 241), the court says that where H sues as heir, he must show his pedigree, and coment heres, for it lies in his proper knowl edge," the court does not say that the omission to do this would be fatal on a general demurrer, or that it is an error in substance. The plaintiff must show how he is heir on the trial; and the 320 sec. of the judiciary act of 1789. c. 20, applies, we think, to omissions of this description. The judgment may be given, "according to the right of the cause, and matter in law," although the declaration may not show whether the plaintiff is the son or brother of his ancestor, or may not set out the will at large. An averment that he is the heir or the devisee, avers substantially a valid title, which it is incumbent on him to prove at the trial.

This cause was argued by Mr. Wickliffe for *the appellant, and by Mr. Talbot for [*455 the respondents.

Mr. Chief Justice MARSHALL delivered the opinion of the court:

This is an appeal from a decree pronounced in the court of the United States for the seventh circuit and district of Kentucky, dismissing a bill brought by the plaintiff, to obtain a conveyance for a tract of land in possession of the defendant under an elder grant, to which the plaintiff claims to have the superior equitable title. The defendant rests on his patent; and as the entry under which the plaintiff claims was made before that patent issued, the cause depends essentially on the validity of the entry. It is in these words:

Dec. 24th, 1782.-" John Tabb enters 10,000 The declaration presents another objection, acres of land, on part of a treasury warrant, respecting which the court has felt considerable No. 9739, to be laid off in one or more surveys, difficulty. In the same count, breaches are as- lying between Stoner's Fork and Hingston's signed, which are directly repugnant to each Fork, beginning about six or seven miles nearother. The plaintiffs allege that from the dely north-east of Harrod's Lick, at two white ash fect of title in the vendor, they have not been saplings from one root, with the letter K markable to obtain possession of the premises; and ed on each of them, standing at the forks of a also that they have been dispossessed of those west branch of Hingston's Fork, on the east premises by due course of law. These aver side of the branch; then running a line from ments are in opposition to each other. But the said ash saplings, south 45 degrees east, 1,600 allegation that possession has never been ob-poles; thence extending from each end of this line

north 45 degrees east, down the branch, until a | least six miles from Harrod's Lick; and not line nearly parallel to the beginning line shall include the quantity of vacant land, exclusive of prior claims."

To obviate the objection founded on this variance, the plaintiff alleges the distinction between the descriptive and locative calls of an entry. The purpose of the first is to bring the subsequent locater into the neighborhood of the land he means to avoid, and that of the second is to find the land already appropriated, so as to enable him to appropriate the adjacent re-tucky. It is this: Clear Creek had, at the time siduum. The precision, therefore, which is necessary in a locative call, has never been required in that which is descriptive.