state were in full force, and were not repealed, or in any manner affected, by that instrument, if by force of these laws he was incapable of throwing off his allegiance to the state, and derived no right to do so by virtue of the treaty, it follows that he still retains the capacity which he possessed before the treaty, to take lands by descent in New Jersey, and, consequently, that the lessor of the plaintiff is entitled to recover. Judgment must be affirmed, with costs. M'Ilvaine v. Coxe's Lessee. *THE UNITED STATES v. THE BRIG UNION, THE SLOOP SALLY AND CARGO, AND THE SLOOP DEBORAH AND CARGO. *216 THESE were three separate libels against these three It is incumvessels, which were seized by the collector of the dis- bent upon the plaintiff in ertrict of Delaware for a supposed breach of the revenue ror to show laws. The sentence of the court below being in favour that this court of the claimants, the United States appealed. has jurisdiction of the case. This court Broom, for the appellees, objected to the jurisdiction will permit of this court, because there was no rule to consolidate viva voce testhe cases, and in neither of them separately did the value timony to be given of the of the thing in dispute, exclusive of costs, appear to be value of the 2,000 dollars. matter in dis- order of the Reed, United States Attorney for the district of Dela- ment made by ware, said it was incumbent on the claimants to show district judge the value, as they had submitted to the jurisdiction below. by three sworn appraisers, is not dence of the But the court said that the plaintiff in error must conclusive evishow that this court has jurisdiction. The circuit court value, but it is can neither give nor take away the jurisdiction of this better eviThis court must judge for itself of its own juris- dence than the opinion of a single witness examined viva voce in open court. court. diction. 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. United States V. Brig Union. *217 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, vol. 4. 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. V. JOHNSON, J. contra. The appraisement was a thing United States not perfected. It was not acted upon, and might have been impeached. 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. 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's Executors, 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. 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 ex pense. Rodney apprehended it would be final, it being an appeal, and not a writ of error. The Court overruled the motion. Brig Union. *218 Upon a de murrer to evi be taken most who demurs, draw, the draw. A bond may as an escrow, by the surety, pal obligor. presence of some of the *PAWLING AND OTHERS v. THE UNITED STATES. ERROR to the district court for the district of Kendence, the tes- tucky, in an action of debt upon an official bond given timony is to by Ballinger, as collector of the revenue, and signed and strongly a- sealed by Pawling, Todd, Adair, and Kennedy, as his gainst him sureties, who pleaded that they delivered the same as an and such,con- escrow to one Joseph Ballinger, to be safely kept; upon clusions as a condition, that if Simon Ingleman and William Patton, jury might named on the face of the bond, should execute the same justifiably as cosureties, then the bond should be delivered to James court ought to Morrison, supervisor, on behalf of the United States, as their deed, and not otherwise; and that the same never be delivered was executed by Ingleman and Patton; yet Ballinger delivered it to Morrison, on behalf of the United States, to the princi- and so not their deed. The delivery as an escrow being Long of the traversed by the United States, issue was thereupon obligors, at joined; in the trial of which the United States dethe time of murred to the evidence produced on the part of the deexecuting the bond, in the fendants, which consisted of the depositions of T. T. Davis, W. G. Bryant, one of the subscribing witnesses, other obligors Elijah Stapp, another subscribing witness, John P. Wagsay, "We ac- non, another subscribing witness, and a letter from Morknowledge this instru- rison, the supervisor, to Ballinger. The deposition of Davis states a conversation between Ballinger and Pawsign it," this ling, some time before the signing of the bond, in which the former told the latter that Todd, Kennedy, Shelby, Knox, Ingleman, Logan, Lewis, and Adair, had agreed the jury may infer a deli- to be security for him; upon which Pawling also agreed very as an es- to become his security, but upon the express condition that the other also should join in the bond. persons It also states a subsequent conversation between the depothen present. nent and Todd, before signing the bond, in which the latter denied that he had agreed to become Ballinger's surety, but said that he should not be apprehensive of danger, if all the men whom Davis had named would join in the bond. The deposition of Bryant states that he saw Pawling, in the presence of Ballinger, sign the bond, on condition *that Kennedy, Todd, Adair, Davis, and others, whom the witness did not recollect, should ment, but others are to is evidence from which crow, by all * 220 V. also sign the bond; and he understood that Pawling was Pawling to be exonerated if they did not. The deposition of United States. Elijah Stapp states that he saw Pawling, in the hearing of Ballinger, acknowledge the bond as his act and deed, upon condition that others mentioned should also sign it. The deposition of Wagnon states, that when Todd, Adair and Kennedy signed the bond, Todd, in the presence of the other two, after inserting in the bond the names of other persons who he said were to sign it, called upon the witness to take notice that others were to sign it, and said, "We acknowledge this instrument of writing, but others are to sign it." The letter from Morrison to Ballinger says, "I have received your favour by Mr. Davidson, who carries back your bond; not that I require more securities, but that you appeared anxious to have more; those who have already signed are very sufficient." It was admitted by the attorney for the United States, that the names of Thomas Kennedy, John Adair, Simon Ingleman, and William Pat ton, inserted in the body of the bond as obligors, were in the hand writing of the defendant Todd. This evidence upon the demurrer was, by the court below, adjudged insufficient. The defendants, the sureties, took a bill of exceptions to the refusal of the court to suffer Ballinger, the principal obligor, to be examined as a witness for them, they having severed in their pleas. But as that question was not decided by this court, it is deemed unnecessary to state the arguments of counsel on that point. Pope, for the plaintiffs in error. Upon a demurrer to evidence, it is a general rule of law, that the evidence must be taken most strongly against the party demurring; and that the court ought to infer every thing which a jury could reasonably have inferred from the testimony. Doug. 134. (3d ed.) Cocksedge v. Fanshaw. 2 Wash. 210, 211. Stephens v. White. In the present case, there can be no question as to the defendants, Pawling and Todd; the only possible doubt *which can be raised is, whether the testimony of Wagnon supports the pleas of Adair and Kennedy. VOL. IV. * 221 |