The Palmyra — 23 U.S. 502

Majority — Marshal C.J.

p. 502

[Practice.]

The Palmyra. Depau, Claimant.

Feb. 19th.

Syllabus

No appeal lies from a decree of restitution, with costs and damages, in the Circuit Court the report of the'commissioner's appointed to ascertain the damagei not having been acted on by the Court when the.appeal was taken. Such a decree is not a final decree.

APPEAL from the Circuit Court of South Carolina.

This was the. case of an armed vessel, called the; Pálrnyra, takén under Spanish colours by the United States’ schooner Grampus, (commanded, by Lieutenant Gregory, and cruising, with instructions from the President, against pirates,) and brought into the port of Charleston, S. C. for adjudication. A libel was filed by the captors, and a claim interposed. by Mr. Depau, as agent of the alleged owners, of the Palmyra, Spanish merchants domiciled at Porto Rico, and of the captain; officers, and. crew. In the District Court the libel was dismissed, without cost's and damages agahist the captors,' The decree of restitution was affirmed in the Circuit Court, with .costs and damages, and . the cause was-brought by appeal to this Court.

It was .suggested by" the Attorney General, (with whom was Mr. Hayne,) for the appellants,

that after the decree of restitution, and for .damages, in the Circuit Court, there had been a

p. 503

reference to commissioners to ascertain the. amount of damages, and before the report of the commissioners had been acted, upon by thát Court, the appeal was taken, The question was, whether the appeal was not taken too early, the Judiciary Act of March 3, 1803, c. 353. [xciii.] haying confined the right of appeal to. “final decrees."^[1]

Feb. 20th.

Mr. Tazewell, contra,

stated, that in the District Court there was decree of institution and a denial of damages. Both parties appealed from that decree, the libellants being dissatisfied with the decree.of restitution, and the claimants with the denial of damages. These were, then, cross-appeals, and consequently there might be an appeal from the decision ff the. Circuit Court decreeing restitution, and affirming, in this respect the decree óf the District Court, although the decree of the Circuit Court reversing that of the District- iCourt as to damages, and awarding the latter to the claimants, was as vet undetermined.

delivered the opinion of the Court.

The Court has had the question submitted in this cause under, consideration, and -is of opinion, that the appeal is not well taken. The decree of the Circuit Court, was not final in the sense of the act of Congress. The damages remain undisposed of and aitappeal may still lie

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upon that part of the decree awarding damages. The whole cause is not, therefore, finally determined in the Circuit Court ; and we are of opinion that the cause cannot be divided, so as to bring up successively distinct parts of it.

The case in 3 Cranch, 179 . is essentially different. In that case, which was an. appeal in an equity cause, there was a decree of foreclosure and sale of the mortgaged property. The sale could, only be ordered after an account taken, or the sum due on the mortgage ascertained in some other way; and the usual decree is, that unless the defendant shall pay that sum in a given time, the estate shall be sold. The decree of sale therefore is, in such a case, final upon the rights of the parties in controversy, and leaves, ministerial duties only to be performed.

Appeal dismissed.^[1]

a a See Young v. Grundy, 6 Cranch, 51 . Gibbons v. Ogden, 6 Wheat. Rep. 448 .