Conn v. Penn

• Court: U.S. Supreme Court
• Writing for the Court: MARSHALL
• Citation: Conn v. Penn, 18 U.S. 424, 5 L.Ed. 125, 5 Wheat. 424 (1820)
• Decision Date: 16 March 1820
• Parties: CONN et al. v. PENN

18 U.S. 424

5 L.Ed. 125

5 Wheat. 424

CONN et al. v. PENN.

March 16, 1820

March 14th.

This cause was argued by Mr. Pinkney, and Mr. Jones, for the appellants, and by the Attorney-General, and Mr. Sergeant, for the respondent.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This is an appeal from a decree of the Circuit Court for the district of Pennsylvania, dismissing the bill of the plaintiffs.

Without going into the merits of the case, the counsel for the plaintiffs contend, that the decree ought to be reversed, because it appears to have been pronounced in part on parol testimony, which has not been introduced into the record, and because the decree was made when the parties interested were not all before the Court.

The laws of the United States have always proceeded on the supposition, that in revising decrees in Chancery, the facts, as well as the law, should be laid before this Court. The judiciary act, which directs that the mode of proof shall be by oral testimony, and that witnesses shall be examined, in open Court, also directs that a statement of facts shan be placed on the record. The act of 1802 leaves it to the discretion of the Courts in those States where testimony in Chancery is taken by depositions, to order, on the request of either party, the testimony of the witnesses to be taken by depositions.

The act of 1803 repeals those parts of the judiciary act which authorize a writ of error, and a statement of facts in Chancery cases; allows an appeal from the decrees of a Circuit Court sitting in Chancery; and directs that a copy of the bill, answer, depositions, and all other proceedings, of what kind soever, in the cause, shall be transmitted to this Court, and that no new evidence shall be heard.

Previous to this act, the facts were brought before this Court by the statement of the judge. The depositions are substituted for that statement; and it would seem, since this Court must judge of the fact, as well as the law, that all the testimony which was before the Circuit Court ought to be laid before this court. Yet the section which directs that witnesses shall be examined in open Court, is not, in terms, repealed.

The Court has felt considerable doubts on this subject, but thinks it the safe course to require that all the testimony on which the judge founds his opinion, should, in cases within the jurisdiction of this Court, appear in the record. The parties may certainly waive testimony by consent, but if this consent does not appear, it cannot be presumed; and where it is shown on the record that witnesses were examined in open Court, this Court cannot say how much the opinion of the Circuit Court was influenced, and ought to have been influenced, by their testimony.

In this case an interlocutory decree was rendered, which decided, to a great extent, the merits of the cause, at a time when one of the defendants named in the bill was not before the Court, and when it...