The Brig Union et al. United States v. The Brig Union, The Sloop Sally and cargo, and The Sloop Deborah and cargo

*The Brig Union et al. United States v. The Brig Union, The Sloop Sally and cargo, and The Sloop Deborah and cargo. Jurisdiction on appeal. It is incumbent upon the plaintiff in error, to show that this court has jurisdiction of the case. This court will permit viva voce testimony to be given of the value of the matter in dispute. An appraisement made by order of the district judge, by three sworn appraisers, is not conclusive evidence of the value, but it is better evidence than the opinion of a single witness, examined viva voce in open court. After deciding the question of value, upon the weight of the evidence, the court will not continue the cause, for the party to produce further evidence as to the value. 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 favor 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 cages, and in neither of them separately did the value of the thing in dispute, exclusive of costs, appear to be $2000. 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 juridiction 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 $1800, 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. (1 U. S. Stat. 695.) 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. [MAJORITY — Marshall, Ch. J.] 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. The appeals were all dismissed for want of jurisdiction in this court. *21 sl -®"0 °hjection was made to the vivd voce examination of the witness as * to the value. *0n 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 he 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 ease from that of Course v. Stead’s Executors, they will reject the motion. Broom, contrá. — 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. Marshall, Ch. J. — 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.