# Bennett v. Butterworth (49 U.S. 124)

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## Dissenting Opinion

    Daniel
United States Supreme Court
49 U.S. 124
Bennett v. Butterworth
A motion was made to dismiss it for want of jurisdiction, because the sum or matter in controversy was not of the value of two thousand dollars.
The motion to dismiss was sustained by Mr. Hughes and Mr. Howard, and opposed by Mr. Harris.
The reasons in support of the motion were the following:
The counsel for Butterworth move to dismiss the writ of error, because the sum or matter in controversy is not of the value of two thousand dollars. Bennett's counsel, on this motion, have taken affidavits to show the negroes to be worth two thousand dollars and upwards.
We contend, for the defendant in error, that the affidavits cannot be read:--
1. Because they contradict the verdict of the jury, which is a part of the record. The error complained of is, that the court erred in giving judgment for the negroes, instead of for the value assessed by the jury; while, on the other side, it is insisted that the judgment was right, and properly for the negroes. The matter then in controversy is the negroes and their value. If the court should be of the opinion, that judgment in the court below could only have been rendered for the value assessed, then the judgment will be reversed, and judgment rendered on the verdict below for that value; and thereby the plaintiff in error, by proving by affidavits what is insisted upon to be the true value, will get off with paying the twelve hundred dollars, though, by his own showing, the value is more than two thousand dollars. Such a result as this will certainly not be tolerated. Could the matter be so arranged that, in the event the judgment is reversed, a judgment could be rendered for the true value, it might be otherwise; for then in truth the matter in controversy in the Supreme Court would be of the value of two thousand dollars; but, as it stands, the plaintiff may be enabled to get clear of a delivery of the negroes, but in no event can be compelled to pay what he says is the true value.
2. Because the judgment in the court below was for the plaintiff; and that judgment it is which, by the writ of error, is in controversy in the Supreme Court; and upon an affirmance of the judgment below, if the affirmed judgment would be for the value of $2,000 or more, then the court would have jurisdiction; but in the case, in any event, there cannot be a judgment for more than twelve hundred dollars, or for the negroes, which the record proves to be of the value of $1,200, and the court cannot take jurisdiction. Gordon v. Ogden, 3 Pet., 33; Smith v. Honey, Id., 469; Knapp v. Banks, 2 How., 73.
3. Mr. Justice Story says,-'To support the jurisdiction, it is necessary that it appear upon the face of the record, or upon affidavits to be filed by the parties, that the sum or value in controversy exceeds $2,000, exclusive of costs.' Hagan v. Foison, 10 Pet., 160.
When the value appears upon the face of the record, that record must be the only evidence; but when it is silent, evidence aliunde may be looked to. When the plaintiff in his declaration or petition claims more than two thousand dollars, and the judgment is for the defendant below, the court has jurisdiction; because, as the court say in Gordon v. Ogden, the whole sum claimed 'may be still recovered; and, consequently, the whole sum claimed is still in dispute.' But the same court say, in the same case, 'If the writ of error be brought by the defendant in the original action, the judgment of this court can only affirm that of the Circuit Court; and consequently, the matter in dispute cannot exceed the amount of the judgment.'
From these rules it would seem that the record, when containing on its face evidence of the value, is conclusive.
The rule as to affidavits was adopted of necessity, and applies only in cases where the record does not furnish evidence of the value. This is shown by the case in which the rule was first laid down. See Williamson v. Kincaid, 4 Dall., 20.
Mr. Harris against the motion.
The counsel for the defendant in error have moved to dismiss the writ of error, because the sum or matter in controversy is not of the value of two thousand dollars. But the same counsel admits in court, that, when the judgment was rendered, the slaves in controversy were worth more than said sum.
He contends, however, that affidavits to that effect cannot be read:--
1. Because they would contradict the verdict of the jury.
2. Because the judgment of the court below was for the plaintiff for property which the record proves to be only of the value of twelve hundred dollars.
And, in support of these positions, he cites the cases of Gordon v. Ogden, 3 Pet., 33; Smith v. Honey, Id., 460; Knapp v. Banks, 2 How., 73; Hagan v. Foison, 10 Pet., 160; and Williamson v. Kincaid, 4 Dall., 20.
Now, for the plaintiff in error it is contended, that these authorities do not sustain the position taken in the brief of the counsel for the defendant in error. In the first three cases, it was impossible to prove that the sum in controversy amounted to more than two thousand dollars, for judgments were rendered for money; in the first instance, for the sum of four hundred dollars; in the second, for only one hundred dollars; and in the third, for $1,720. In the fourth and fifth cases, the amount did not appear upon the face of the record, and the court held that the plaintiffs in error might prove by affidavits that the value of the property in controversy, in these respective causes, amounted to more than the sum of $2,000. And it may be remarked, that, in the three cases cited first above, the only question was whether the sum claimed in the count, or that which was recovered, ought to be regarded as the amount in controversy; and to which sum the court should look in order to determine the question of jurisdiction. And the onus of proving that the value of the property amounted to more than two thousand dollars rested upon the plaintiff, (who had alleged that its value was $2,700,) and not upon the defendant in the court below. Now, for the first time, the burden of making that proof rests upon the defendant in that court, and he is prepared to make it.
It is respectfully suggested, that there can be produced no decision of this court refusing to permit the plaintiff in error to make such proof. And to deny the privilege, under the imposing circumstances of this case, would, we contend, be to deny to the plaintiff and the defendant a mutuality of rights under the statute, the benefits of which we are seeking to obtain.
The case of The United States v. The Brig Union, 4 Cranch, 216, bears a resemblance to this, and in that the court permitted affidavits to be read to prove the value of the property in controversy; see, also, Wilson v. Daniel, 3 Dall., 401.
It is further contended, that the effect claimed for this verdict ought not to be conceded to it, for that it is illegal, and that it ought to have been set aside in the court below. It will be seen, by reference to the plaintiff's petition, particularly to the prayer thereof,-that this suit was brought for the recovery of the slaves 'in specie,' (not for the recovery of their value,) and for damages for their unlawful detention. The important issue, viz., whether the right of property was in the plaintiff or the defendant, was, in the verdict of the jury, entirely omitted. See Coffin v. Jones, 11 Pick. (Mass.), 45.
2. It did not embrace all the issues which it should have done. See Crouch v. Martin, 3 Blackf. (Ind.), 256; Patterson v. United States, 2 Wheat., 221; Jewett v. Davis, 6 N. H., 518.
3. It should have found the value of each of the slaves separately.
II. We further contend, that the judgment is illegal, because it is not responsive to the verdict.
And it is contended, on the part of the plaintiff in error, that he ought not to be estopped from proving the value of the property in controversy by a verdict which is illegal, and is not responsive to the issues; nor by a judgment which is entirely foreign to the verdict. Estoppels are not favored in law, because they tend to exclude the truth. That such would be the case here cannot be questioned. Again, estoppels, like contracts, must bind both parties, or they will bind neither.
Each court is the guardian of its own jurisdiction. Kendrick v. McQuary, Cooke (Tenn.), 480. And this proposition may be said to be universally correct in regard to appellate courts, established for the purpose of re examining causes tried in inferior tribunals, and to correct the errors which may be there committed.
Mr. Chief Justice TANEY delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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