8 US 216 The United States v. The Brig Union the Sloop Sally and Cargo

8 U.S. 216

4 Cranch 216

2 L.Ed. 116

2 L.Ed. 600


February Term, 1808

THESE were three separate libels against these three vessels, which were seized by the collector of the district of Delaware for a supposed breach of the revenue laws. The sentence of the court below being in favour of the claimants, the United States appealed.

Broom, for the appellees, objected to the jurisdiction of this court, because there was no rule to consolidate the cases, and in neither of them separately did the value of the thing in dispute, exclusive of costs, appear to be 2,000 dollars

Reed, United States Attorney for the district of Delaware, said it was incumbent on the claimants to show the value, as they had submitted to the jurisdiction below.

But the Court said that the plaintiff in error must show that this court has jurisdiction. The circuit court can neither give nor take away the jurisdiction of this court. This court must judge for itself of its own jurisdiction.

A witness was then introduced in behalf of the United States, who was sworn and examined viva voce in open court to prove the value.

Broom, for the appellees, read from the record an appraisement, made by three sworn appraisers, by order of the district judge, by which the brig Union was appraised at 1,800 dollars, the sloop Sally at 400, and the sloop Deborah at 600, and contended that this appraisement being made by order of the judge, was conclusive evidence of the value of the matter in dispute, although that appraisement was never acted upon by the claimants giving caution so as to liberate the vessels, which was the reason of the order for appraisement, according to the 89th section of the revenue law, 4 vol. p. 428. But if it should not be deemed conclusive evidence, yet it is better evidence than the opinion of a single witness who now forms a judgment from his recollection of the vessels two years ago. It is the testimony of three persons, who formed their judgment at the time from an actual view and examination of the property. It was returned to the court and filed and entered upon record, without any objection on the part of the United States.

Rodney, Attorney General, contra.

If the court below cannot by any act oust this court of its jurisdiction, much less can any of its officers or appraisers. If this valuation be conclusive, it puts it in the power of appraisers appointed by the court below to deprive this court of its jurisdiction.

MARSHALL, Ch. J. The appraisement is not conclusive evidence of the value, but in this case it is the best evidence. It was made by officers of the court under its order, and was regularly returned and filed. It does not impeach the credibility of the witness now examined, for the value is a matter depending upon opinion, and with respect to which the judgments of men may honestly vary. The appraised value would have been the matter in dispute if the property had been delivered up to the claimants upon security given.

Todd, Livingston, Washington, Chase and Cushing, Justices, concurred.

JOHNSON, J. contra. The appraisement was a thing not perfected. It was not acted upon, and might have been impeached.

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The appeals were all dismissed for want of jurisdiction in this court.


No objection was made to the viva voce examination of the witness as to the value.


On the next day,


Rodney, Attorney General, moved the court for a continuance of these causes, and leave to take affidavits respecting the value of the property, so as to sustain the jurisdiction. This court has only decided that its jurisdiction does not appear upon the record. It is like the case of Course v. Stead's Executors, 4 Dall. 25. where the court continued the cause, and suffered affidavits to be taken to show the value of the matter in dispute. If the court should be of opinion that the decision of yesterday upon the weight of testimony differs this case from that of Course v. Stead, they will reject the motion.


Broom, contra.


If this motion had been made yesterday, before the decision of the court upon the weight of testimony, perhaps it might have been proper, but after the parties have put themselves on trial upon the evidence then before the court, and the decision has been made, it is not usual to open the case and grant a new trial, unless new evidence is suggested to have been discovered since the trial, not known to the party at the time of trial.



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Cannot the United States sue out a new writ of error, and take new affidavits to show the cause to be within our jurisdiction? If so, perhaps the court would not put the United States to that expense.


Rodney apprehended it would be final, it being an appeal, and not a writ of error.


The Court overruled the motion.