The parol evidence given on the hearing of a petition in the
District Court of the United States for the Eastern District of
Louisiana in the nature of an equity proceeding should nave been
reduced to writing and appear in the record.
In the district court, the United States filed a petition
stating that the Mayor of the City of New Orleans, in pursuance of
an ordinance of the city council, had advertised for sale certain
lots therein described; that by virtue of the treaty of cession,
all vacant lots belonged to the United States; that those lots were
vacant; that the City of New Orleans had never received any grant
for them unless in virtue of the 3d section of the Act of Congress
of 3 March, 1807, entitled "An act respecting claims to land in the
Territories of Orleans and Louisiana," which is denied, whereupon,
and inasmuch as the said attempts of the said city council to sell
the said lands as private property is an evasion of and trespass
upon the rightful dominion and possession of the United States in
the premises, they pray that the defendants
"may be cited to appear and answer this petition, and that in
the meanwhile they may be inhibited by injunction from persisting
in the said attempt, and after due proceedings had that it may be
ordered, adjudged and decreed that the said injunction be made
perpetual, and your petitioner, in the name, and on the behalf
aforesaid, prays all other and further relief that equity and the
nature of the case may require."
On this petition an injunction was granted, issued, and served
inhibiting the sale of the lots.
The defendants, by their amended answer, deny the right of the
petitioners and set up title in themselves, 1st, under a royal
cedule granted by the King of Spain; 2. under an Act of Congress of
3 March, 1807; 3d, as alluvial soil formed in front of the city
which, as they aver, is by the laws of the land the property of the
city without any grant,
Page 30 U. S. 450
and they pray that the cause may be tried by a jury. The
plaintiffs filed a general replication, not controverting the right
demanded of a trial by jury.
The defendants, in support of their plea of title, file and
produce the following documents: 1. the royal cedule; 2. the law of
the United States granting 600 yards round the fortifications to
the corporation; 3. sundry plans showing that the premises were
contained within the boundaries of the land granted by those acts,
and were, moreover, alluvial soil. They also examined witnesses,
but their depositions were not taken in writing.
The judge considering the cause as one of equity jurisdiction,
proceeded to hear the cause and decreed that the injunction should
be made perpetual. And as the oral testimony had not been reduced
to writing, the judge, under the 19th section of the Judiciary Act,
gave a statement of his recollection of the facts.
From this decree the defendants appealed.
Upon inspecting the record, the Court, upon the principles laid
down in
Conn v. Penn,
5 Wheat. 424, ordered the decree to be reversed.
In the case of
Conn v. Penn, the Court held that in
appeals from the circuit courts in chancery cases, the parol
testimony which is heard at the trial in the circuit court ought to
appear in the record.
