Boyce's Executors v. Grundy (34 U.S. 275)/Opinion of the Court

by Joseph Story

United States Supreme Court

34 U.S. 275

Boyce's Executors  v.  Grundy

district of west Tennessee.

At January term 1830, this case was before the court on an appeal by the same appellants, and a decree was rendered in favour of the appellee. 3 Peters 210.

The appellee in that case, had filed in the circuit court a bill for the rescision of a contract entered into by him with the appellant's testator, James Boyce, for the purchase of a quantity of land in the state of Mississippi; and upon which contract the two first instalments, payable by the same, being due, and unpaid, a suit had been instituted, and a judgment for the amount obtained. The bill also prayed an injunction against the judgment.

The circuit court decreed that the contract should be rescinded, and ordered a perpetual injunction of proceedings on the judgment: and the following mandate was issued from this court, on the affirmance of the decree of the circuit court.

'The President of the United States of America, to the honourable the judges of the circuit court of the United States for the district of west Tennessee, greeting:

'Whereas, lately, in the circuit court of the United States for the district of west Tennessee, before you, or some of you, in a cause wherein Felix Grundy was complainant, and Robert Boyce and Richard Boyce, executors of James Boyce deceased, were defendants in chancery, the decree of the said circuit court was in the following words, viz. 'His honour does order, adjudge and decree, that said contract or agreement between James Boyce, now deceased and complainant, be in all things rescinded and annulled; and because it appears from the evidence that complainant has never received any part of the rents for the plantation, but that an arrangement between him and Robert Boyce, authorized him (R. Boyce) to sue Reed, the complainant's tenant, in complainant's name, for Boyce's benefit, for the rents of 1819, 1820, 1821, 1822 and 1823, that he did so and recovered therefor, and got the same, and that complainant did, by his agent, Harry L. Douglas, Esq., notify defendants to take possession of said land and plantation, as he would not retain the same on account of the fraud aforesaid; it also appearing, from the records of this court, that this bill was filed on the day of 1823; that at the June term of this court 1824, complainant was ready and pressed for a trial, and that the defendants were not ready for trial, at that or any subsequent term, but continued the same on their affidavit; and it appearing to the court that complainant did pay said James Boyce the sum of 1250 dollars, on the 5th day of July 1818, and on that day executed to him his note for 750 dollars, in part payment for said land, and that James Boyce had a counterpart of the agreement:

"It is further ordered, adjudged and decreed, that defendant Robert, administrator of the goods, &c. of James Boyce, deceased, do pay to complainant the said sum of 1250 dollars, with legal interest thereon, at the rate of eight per centum per annum; which appears to be the legal rate of interest in said Mississippi state; from the said 5th day of July 1818, until this day, making the sum of 2065 dollars and 28 cents, to be levied of the goods, &c. of said James, in his hands to be administered, and execution issued therefor as at law; and that defendants do surrender to the clerk and master of this court, said note for 750 dollars, and said counterpart, within three calendar months after final decree in this cause, which, together with the agreement exhibited in the bill, shall be dy him cancelled, and that defendant be perpetually enjoined from executing said judgment on the law side of this court. It is further decreed that defendants pay the costs of this suit, and the costs of said suit at law, and that execution issue therefor as at law:'-as by the inspection of the transcript of the record of the said circuit court, which was brought into the supreme court of the United States by virtue of an appeal, agreeably to the act of congress in such case made and provided, fully and at large appears.

'And whereas, in the present term of January, in the year of our Lord 1830, the said cause came on to be heard before the said supreme court, on the said transcript of the record, and was argued by counsel. On consideration whereof, it is ordered and decreed by the court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed with costs. February 2, 1830.

'You therefore are hereby commanded, 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 said appeal notwithstanding.'

In the circuit court, the proceedings on the mandate were the following.

'September 13th 1830. This cause came on this day, and on a former day of this term, to be heard before the honourable John M'Lean and John M'Nairy, judges, in presence of counsel on both sides, upon the mandamus from the supreme court, affirming the decree formerly rendered in this court; and in obedience to said mandate it is ordered, adjudged and decreed that the defendants pay the costs of the supreme court of the United States, and the costs of appeal, to be taxed by the clerk and master; and upon motion and petition of complainant, the cause is set down for further directions; and it is ordered that the clerk and master take an account of the assets of James Boyce, deceased, in the hands of the defendant, Robert Boyce, to be administered, and make report, during this term, until the coming of which report other matters are reserved.

'And at the same term, to wit, 1830. 'This cause came on for further directions, this 28th of September 1830; and upon the exceptions filed by the counsel for defendants to the report of the clerk and master, which report was made in pursuance of a decree rendered at a former day of this term, and is in the words and figures following, to wit:

"In obedience to the interlocutory order made in this cause at the present term, the clerk and master reports, that it does not appear that any personal assets of James Boyce, deceased, came to the hands of said defendants as his executors; but it does appear, from the agreement between complainant and Robert Boyce, admitted to have been dated the 23d of May 1823, and from the depositions of Thomas B. Reed, Isaac Caldwell and James E. Gillespie, that Robert Boyce has received for rents, previous to the 1st day of January 1824, the sum of 2100 dollars. That interest on this sum, from the 1st day of January 1824, till the 1st of September 1830 (at the rate of eight per centum per annum, the transaction having taken place in the state of Mississippi, where, by the pleadings in this cause, that is admitted to be the legal rate of interest), will amount to 1120 dollars; amounting in all to 3220 dollars. The above depositions of Reed, Gillespie and Caldwell, and said agreement are herewith produced as a part of this report. It appears from the answer of defendants, that the land in controversy was devised by James Boyce, deceased, to one Richard Boyce, one of the defendants in this cause. All of which is respectfully submitted.

"And exceptions to said report being argued by counsel, and fully understood by the court here; it is ordered, adjudged and decreed, that the exceptions to said report be overruled, and that the report be confirmed, except so far as relates to the interest on the sum of 2100 dollars. It is further ordered, adjudged and decreed, that the complainant recover of Robert Boyce the said sum of 2100 dollars, with interest from this day, to be levied of his own proper goods and chattels, lands and tenements; and that, for the balance due the complainant, amounting to 496 dollars and 46 cents, with interest from this time, and also the aforementioned sum of 2100 dollars, in case the same is not paid by the said Robert Boyce, on or before the first Monday in March next, and the costs of this suit, that the complainant has a lien on the tract of land in the state of Mississippi, in the pleadings mentioned; and is entitled to have the same sold to satisfy the above mentioned sums of money. It is further ordered, adjudged and decreed, that in case the said sums of money and costs of suit, or any part thereof, be unpaid on the 1st day of March next, that in that case, the said tract of land and appurtenances, be exposed for sale at Natchez, in the state of Mississippi, by commissioners to be appointed by the clerk and master of this court, on such credit as he may direct, forty days notice of the time and place of sale being given in some public newspaper printed in Natchez. And it is further ordered, adjudged and decreed, in case of said sale, that the defendants, Robert Boyce, as executor and administrator with the will annexed, and Richard Boyce, join in a deed or deeds to the purchaser or purchasers, under the direction of the clerk and master of this court; and it is further ordered, that the clerk and master of this court make report of his proceedings to the next term of this court."The exceptions filed to the report of the clerk and master, are in the words following, to wit:

"Defendants, by their counsel, except in manner following to the report of the clerk and master of this court in this cause.

"1. It is not the fact, as stated by the said clerk and master, that the agreement between R. Boyce and F. Grundy, of date the 23d of May 1823, admits, either on its face or by implication, that the said Robert Boyce had then or has now assets in his hands as executor of the last will and testament of James Boyce, deceased.

"2. Defendants except to said report, if by it it is intended to render Rober Boyce liable, as executor of James, on the ground that he had assets in May 1823; because the same may have been long since paid away in discharge of debts due by the testator in his lifetime.

"3. Defendant excepts to said report, because it should have been stated that the agreement between R. Boyce and F. Grundy, of May 23d 1823, was an agreement with said Boyce, not as executor, but in his own individual capacity, and that said Boyce was acting merely as attorney in fact for said Grundy, and is responsible, if at all, in his individual capacity,'-'the collections to be made by said Boyce, if the contract between James Boyce and said Grundy was rescinded, to be, stand and remain subject to future arrangements between said parties.'

"For these and many other reasons to be assigned on argument, defendant's counsel pray that said report be recommitted to said clerk and master."

The defendants appealed to this court.

The case was argued Mr Loughborough, for the appellants; and by Mr Key, for the appellee.

Mr Loughborough, for the appellants.

This cause was once before in this court; when, in 1830, the decree of the court below, of 1826, rescinding the contract for land between Grundy and Boyce, was affirmed. 3 Peters 210.

By the decree of 1826, it was amongst other things, directed that Robert Boyce, administrator of James Boyce, should pay to Grundy 1250 dollars purchase money, received by James Boyce, and 815 dollars for interest at eight per cent, making 2065 dollars, to be levied of the goods of the intestate.

At the first term of the circuit court, after the affirmance of this decree, the mandate of this court was entered; and, on the same day, the clerk and master was ordered to take and report an account of assets in the hands of Robert Boyce.

On the 28th September, during the same term, the master reported that no assets had come to the hands of the defendants, but that Robert Boyce had received 2100 dollars for rents, under an agreement with Grundy.

This report was excepted to; but sustained, except as to the interest; and a decree entered against Robert Boyce in his own right, for 2100 dollars, and interest from the date of the decree. Also, there was decreed to Grundy, 496 dollars and 46 cents, and interest, making the sum of 2596 dollars and 46 cents, with interest; for the whole of which the decree recognised a lien upon the land in Mississippi, and directed the same to be sold, unless the whole amount of principal, interest and costs should be paid by the 1st day of March succeeding.

The proceedings in the court below, subsequent to the decree of 1826, are improper. That decree was final, and concluded the whole cause. It settled the sum, with interest, due to the plaintiff, gave him execution for it and for the costs. It has every characteristic of a final decree. Nothing is reserved. It is a reservation of further directions in a decree that enables the court to give the plaintiff any subsequent incidental relief. 2 Mad. Ch. Pr. 456; 2 Atk. 284.

The order for an account before the master was erroneous: such an order is in its nature interlocutory. It should precede, not follow a decree. After a final decree, an order for the defendant to account before the master, so as to vary the relief sought by the bill, cannot be granted on motion. Hendricks v. Robinson, 2 Johns. Ch. Rep. 484.

There is no regular way to call an executor to account but by bill. 1 Ball and Beatty's Rep. 75.

Though it be generally true, that when a cause comes up to this court a second time, the court will not look behind its mandate, yet the prior proceedings will be examined so far as it is necessary to an investigation of new points of controversy, between the parties, not disposed of by the first decree. The Santa Maria, 10 Wheaton 431, 6 Cond. Rep. 176.

The decree now appealed from subjects Boyce in his own right: yet the bill of Mr Grundy does not charge a devastavit. It was not framed with a view to charge Boyce personally. It does not pray a discovery and an account of assets. It contains no allegations proper to found proceedings upon against the goods and chattels of Robert Boyce. The facts, the proof of which was necessary to subject R. Boyce in his own right, were not put in issue by the plaintiff's pleadings. The reference to the master, therefore, was not proper in this suit; and the last decree is not sustained by the pleadings. Carneal v. Banks, 10 Wheaton 181, 6 Cond. Rep. 64.

Neither do the proofs sustain the last decree. In fact no additional proof was taken after the first decree, either in court or before the master. The report of the master was a form only. It was wholly founded upon evidence in the cause previous to the first decree. Can the circuit court, after a decree de bonis testatoris, which reserves nothing; upon motion merely; and without further pleading or proof, make it a decree de bonis propriis? Can a final decree affirmed by this court be afterwards changed in a substantial matter by the court below? The proceedings in the circuit court, after receiving the mandate of this court show an amendment made at the instance of one party, the other objecting, in the body of the first decree. If the last decree is proper, then the first, which was affirmed by this court, is wrong.

The answer of Boyce does not admit assets. It responds to the matter of the contract only. But if it had admitted assets, the admission was waived by proceeding to an account before the master. 1 Bro. Ch. Rep. 484; 2 Mad. Ch. Pr. 379.

The master's report should not have been confirmed. The decree is not sustained by it. The reference was to ascertain the assets of James Boyce, in the hands of the defendant. The report states that no assets have come to defendant's hands. This was all the master had in charge. It was within the reference, and fully responsive to it; and upon this no decree against the defendant, personally, could be made. Indeed the report states the fact which discharges Robert Boyce from individual responsibility.

But the master, exceeding his authority, reports that R. Boyce has received a large sum for rents of the land in controversy, under an agreement with Grundy, of May 1823. The matter of rents was not referred to the master. When a master's report manifestly exceeds his authority, though not excepted to, but confirmed, still it must be considered a nullity. 2 Mad. Ch. Pr. 508; 1 Merivale 179.

The receipt of the rents by Boyce, cannot charge him personally in this suit for purchase money paid to his intestate. Boyce received them as attorney in fact for Grundy; and his responsibility for them, is in his individual capacity, not as administrator. The rents, when received by Boyce, did not become assets of the estate of James Boyce. The agreement under which they were collected, recites a contemplated suit for the rescision of the contract, and provides that if the contract be affirmed, the rents may be applied by Boyce as purchase money; but if rescinded, they are to be held by Boyce, subject to future arrangement between the parties. Not only the event upon which alone they were to be applied as purchase money, did not happen; but, by the happening of the other event, the rescision of the contract, the express provision of the agreement took effect, and they were prevented falling into the estate of James Boyce as purchase money. Boyce's responsibility for these rents is at law, upon the agreement. Suppose an action against him by Grundy, could he plead this decree against him as administrator, for money due from the estate of another as a bar? In a suit by the distributees of the estate of James Boyce, for an account and distribution of the estate, can R. Boyce be charged with these rents as part of the assets, in the face of the agreement, making him responsible to Grundy for them? If this cannot be done, then it seems clearly to follow that Boyce cannot be made responsible for them in this suit: because, a plaintiff cannot, in one suit in chancery, unite a demand against the estate of James Boyce, with one against the representative, personally, for which the estate was never chargeable. The whole effort in this case, is to satisfy a decree against the estate of James Boyce, out of money due to plaintiff from Robert. Will the court permit the plaintiff thus to unite his demands? Will it allow him the privilege of substituting the report of a master in chancery for an action at law upon the agreement, and have a summary decree for his money? Boyce may have a good legal defence to an action at law, upon the agreement; yet of this he is deprived by the proceedings below.

Upon the view of the matter now taken in behalf of Grundy, he has paid for purchase money not only 1250 dollars, but also 2100 dollars (the amount of the rents). Yet he alleged the payment of 1250 dollars only, and took his first decree for the return of that and interest. The report of the master is founded upon evidence in the court, prior to the first decree. It was not until after the affirmance of that decree by this court, that new light broke in upon Mr Grundy.

When a contract is rescinded, chancery puts the parties as nearly as may be in statu quo. If it returns to the one his money and interest, it gives to the other his land and rents. This has not been done here. Grundy possesses this land for five years, and now has a decree for his money and a large sum for interest, without the estate of James Boyce receiving any of the rents. This is unequal. The court should have done full justice.

The decree is erroneous in respect to interest. Interest is allowed upon interest. This is improper. Waring v. Cunliffe, 1 Vesey, Jun. 99; Turner v. Turner, 1 Jacob and Walker 37; 3 Hen. and Mumf. 89-116.

A lien is declared upon land in Mississippi, and a sale of it is directed to satisfy the money due. The circuit court for Tennessee had no jurisdiction to do this. No court can act directly in rem, when the thing is out of its jurisdiction. Here neither the person of the defendant, nor the land, is within the jurisdiction of the court. Boyce is a citizen of Kentucky, and it is because he is not resident within the jurisdiction of the court, that the case is within its cognizance. The chancery of England has, it is true, taken cognizance of cases respecting land in Ireland and the colonies, but in such cases it never attempts to act directly upon the land itself. Having the person, it acts upon the land through the person, and compels a performance of its decrees by committing the party to the Fleet for a contempt by disobedience. The court below has not taken that course. It has decreed as though the land in Mississippi were within its jurisdiction, and has directed its officer to sell it. This is certainly a novel proceeding.

Mr Key, for the defendant.

The court below have only fairly proceeded, in obedience to the mandate, to such further proceedings as were proper.

The mandate is referred to, to show that the cause was sent down for 'such executions and proceedings to be had in said cause, as were according to right and justice.'

The appellee filed a petition in the circuit court on this mandate, and had the cause 'set down for further directions,' and then there was an order to the master to take an account.

The report of the master says, there were no personal assets, but he reports other assets-real assets, equitable assets.

The court then decreed, that out of these assets thus found in defendant's hands, he shall pay over to the complainant, the amount adjudged to him by this court. This is a proper execution of the mandate.

The original decree gave a certain relief, and all that was done by the court below was to adopt such further proceedings as were necessary to give the complainant the relief decreed.

As to the orders of the court, they are correct; and according to all the reasonable strictness required in chancery proceedings; cited 1 Swanst. 293, 573; 2 Bro. Ch. Pr. 548. As to motions and petitions, and further directions after decree: also, 1 Grant's Chan. 230, 243, 244; 4 Madd. 464; 2 Grant 248.

The master's report was properly confirmed.

The decree states, the money to have been collected by Boyce. According to the evidence, it was the money of the testator; having been received from the lands, which became his, by the rescision of the contract. The master finds that that sum was in his hands as executor, and was assets.

If not assets, under the circumstances, the defendant might have been considered to have collected these rents, pending the controversy, as a receiver.

As to the objection that the court could not order land in the state of Mississippi to be sold, he contended that the court (the parties being within its jurisdiction) could proceed in rem. Penn v. Lord Baltimore, 1 Ves. Sen. 454; Lord Cranstown v. Johnson, 3 Ves. 170; 1 Salk. 404; 1 Vern. 75, 405; Carroll v. Lee, 3 Gill & John. 509.

Mr Justice STORY delivered the opinion of the Court.

This is an appeal from a decree of the circuit court for the district of west Tennessee, rendered upon a mandate directing that court to execute a former decree of this court. The case, when formerly before this court, will be found reported in 3 Peters 210; to which reference may, therefore, be had for a full statement of the facts.

The material facts are, that the original plaintiff, Mr Grundy, in 1823 brought his bill against Robert Boyce and Richard Boyce, as executors of James Boyce deceased, for the rescision of a contract for the sale of lands in the state of Mississippi, stated in the bill; and for the repayment of the sums of money paid by the plaintiff on the contract; and for a perpetual injunction of a judgment obtained on the same contract. It appeared from the bill and answer, that Robert Boyce alone was qualified as executor under this will; and the answer alleged that another and later will had been subsequently discovered, by which the whole proceeds of the land in controversy were devised to Richard Boyce, who was appointed sole executor thereof; but he renounced the executorship, and Robert Boyce was appointed administrator, with the will annexed. Upon the hearing of the cause in the circuit court, in August 1826, it was among other things decreed, that the contract stated in the bill be in all things rescinded and annulled; and 'that the defendant, Robert, administrator of the goods, &c. of James Boyce, deceased, do pay the sum of 1250 dollars, with legal interest thereon at the rate of eight per centum per annum, which appears to be the legal rate of interest in said state of Mississippi, from the said 5th day of July 1818 until this day, making the sum of 2065 dollars and 28 cents, to be levied of the goods, &c. of the said James in his hands, to be administered and execution issue therefor, as at law.' From this decree the defendants appealed to this (the supreme) court; and at the January term thereof 1830, the decree of the circuit court was affirmed with costs; nothing being said as to any allowance of damages or interest. A mandate in the usual form was issued to the circuit court, to carry the same into effect. At the September term of the circuit court 1830, in obedience to the mandate, the circuit court ordered the cause to be set down for further directions, and it was referred to the clerk, as master, to take an account of the assets of James Boyce in the hands of the defendant, Robert Boyce, to be administered, and to report thereon. The master made a report at the same term, stating, in substance, that it did not appear that any personal assets of James Boyce came to the hands of the defendants, as his executors; but that it did appear from the agreement between the plaintiff and the defendant, Robert Boyce, admitted to have been dated on the 23d of May 1823, and returned with the report, and from certain depositions in the case, that Robert Boyce had received for rents, previous to the 1st of January 1824, the sum of 2100 dollars, and that the interest thereon, from the 1st day of January 1824 to the 1st day of September 1830, at the rate of eight per cent, will amount to 1120 dollars, making in all 3220 dollars. The report also stated, that the land in controversy was devised by James Boyce to the defendant, Richard Boyce.

Upon the coming in of the master's report, exceptions were filed by the defendant, Robert Boyce, and upon hearing the same, they were overruled, and the report was confirmed by the circuit court at the same term, except as to the 1120 dollars. And thereupon the court decreed, 'that the plaintiff recover of Robert Boyce the sum of 2100 dollars with interest from this day, to be levied of his own proper goods and chattels, &c.; and that for the balance due the plaintiff, amounting to 496 dollars and 46 cents, with interest from this time, and also the aforementioned sum of 2100 dollars, in case the same is not paid by the said Robert Boyce on or before the first Monday in March next, and the costs of suit, the plaintiff has a lien on the tract of land in the state of Mississippi, in the pleadings mentioned, and is entitled to have the same sold to satisfy the above mentioned sums of money.' And it then proceeded to direct the time, manner, &c. of the sale.

It is from this decree that the present appeal is taken; and various objections to it have been insisted upon in the arguments at the bar. Some confusion arises in the case, from the report of the master: he having stated, in one part thereof, that no assets came to the hands of the defendants as executors; and yet, in another part, having stated that the rents of the land in controversy had come to the hands of Robert Boyce, under an agreement between the plaintiff and Robert Boyce, without stating that they had come to his hands as assets, and were now to be deemed assets of James Boyce. If, under the agreement, these rents were received by Robert Boyce, as agent of the plaintiff, and not as executor, it is very clear that in the present suit no decree could be had against him therefor; since he is sued only in his representative capacity as administrator, and therefore no decree could be rendered against him in his personal capacity. But if the rents, under the agreement, upon the rescision of the contract stated in the bill, and finally decreed thereon, became virtually the money of James Boyce, then they might be properly deemed assets in the hands of the administrator, and, as such, liable to the execution of the plaintiff. And we are of opinion that, under all the circumstances, the latter is the predicament in which they are to be viewed; and that the master ought to have reported the sum of 2100 dollars, so received, to be assets. And to this extent there is no objection to the decree of the circuit court.

A more important objection is, that the decree is not rendered against the administrator, as such, payable out of the assets in his hands to be administered, or payable out of the said sum of 2100 dollars (the rents above stated); and if these assets are not sufficient, then out of the assets of his testator, quando acciderent; but the decree is personally against Robert Boyce, for the said sum of 2100 dollars, to be levied out of his own proper goods and chattels, &c., although no devastavit is either suggested or proved. We are of opinion that the decree is erroneous in this respect, and that it ought to have been for the amount against the administrator in his representative character, to be levied of the assets of the testator in his hands; and as to the 2100 dollars, if no such assets should be found, then (as upon a devastavit) against the proper goods of the administrator to the same amount, with costs. In no other way can the defendant, Robert Boyce, be protected by the payment, in the course of his administration, of the assets of the testator; for it will not otherwise judicially appear, that the rents were treated as assets. And, besides, the decree will not otherwise conform to the capacities and rights of the parties, according to the frame of the bill, and the original decree.

Another objection is to that part of the decree, which creates a lien upon the land in controversy, lying in another state, and decrees a sale for the discharge of the lien. We are of opinion, that the decree is erroneous in this respect. In the first place, the court had no jurisdiction to decree a sale to be made of land lying in another state, by a master acting under its own authority. In the next place, the original decree, affirmed by the supreme court, which alone the circuit court was called upon to execute, created no such lien, and authorized no such sale. The decree was therefore, in both respects, not an execution of the former decree, but a new and enlarged decree. In the next place, the proper parties, the heirs at law or devisees, were not properly before the court; for though the master in his report states, that Richard Boyce was, under the will, devisee of the lands in controversy, this was a matter extra official, and not confided to the master by the reference to him; and, if it had been, the bill itself was not framed so as to charge the devisee or seek relief against him personally, but only as representative of the deceased.

Another objection to the decree is, that it decrees the sum of 496 dollars and 46 cents, intended, as is understood, (though not so stated in the decree) as interest upon the original sum decreed in the circuit court, viz. 2065 dollars and 28 cents, in 1826, from the time of the rendition thereof to the affirmance in the supreme court, in January term 1830. We are of opinion that there is error, also, in this part of the decree. By the judiciary act of 1789, ch. 20, s. 23, the supreme court is authorized, in cases of affirmance of any judgment or decree, to award to the respondent just damages for his delay. And by the rules of the supreme court, made in February term 1803 and February term 1807, in cases where the suit is for mere delay, damages are to be awarded at the rate of ten per centum per annum on the amount of the judgment, to the time of the affirmance thereof. And in cases where there is a real controversy, the damages are to be at the rate of six per cent per annum only. And in both cases the interest is to be computed as part of the damages. It is, therefore, solely for the decision of the supreme court, whether any damages, or interest (as a part thereof), are to be allowed or not in cases of affirmance. If upon the affirmance no allowance of interest or damages is made, it is equivalent to a denial of any interest or damages; and the circuit court, in carrying into effect the decree of affirmance, cannot enlarge the amount thereby decreed; but is limited to the mere execution of the decree in the terms in which it is expressed. A decree of the circuit court allowing interest in such a case is, to all intents and purposes, quoad hoc, a new decree, extending the former decree. In Rose v. Himely, 5 Cranch 313, it was said, that upon an appeal from a mandate, nothing is before the court but the proceedings subsequent to the mandate; and the court refused to allow interest in that case, which was given by the circuit court in executing the mandate, because it was not awarded by the supreme court upon the first appeal. The same point was fully examined in the case of The Santa Maria, 10 Wheaton's Rep. 431, 442, where the court held that interest or damages could not be given by the circuit court in the execution of a mandate, where the same had not been decreed by the supreme court upon the original appeal.

For these reasons, the decree of the circuit court must be reversed; and a new decree will be entered by this court upon the principles stated in this opinion.

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 west Tennessee, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed, that the decree of the circuit court, rendered upon the mandate aforesaid, be and hereby is reversed and annulled. And this court, proceeding to render such decree as the circuit court ought to have rendered in the premises, do further order, adjudge and decree as follows: that the said sum of 2100 dollars, reported by the master as received for rents by the said Robert Boyce, under the agreement therein mentioned, ought, under all the circumstances of the case, to be deemed assets of the said James Boyce deceased, in his, the said Robert's hands, to be administered according to law; and that the same ought to be applied, in a due course of administration, to the payment of the debt of 2065 dollars and 28 cents, in the original decree of the circuit court, awarded to the plaintiff, and to the payment of the costs of the present suit; and it is therefore ordered, adjudged and decreed, that the same be so applied and paid by the said Robert, as administrator with the will annexed of the said James Boyce, accordingly. And it is further ordered, adjudged and decreed, that execution do issue against the said Robert Boyce, administrator as aforesaid, for the said debt of 2065 dollars and 28 cents, and the costs of the present suit, to be levied of the goods and chattels, &c. of the said James Boyce, in the hands of the said Robert, administrator as aforesaid, and if none such shall be found, then to be levied out of the proper goods and chattels, &c. of him, the said Robert.

Notes