15 U.S. 371

IN the argument of this cause, Mr. Winder, for the claimant, stated, that there was an affidavit annexed to the record, which was taken under the order for farther proof, in the court below, but which, not arriving until after the decree of condemnation was pronounced, was ordered by the circuit court, to be transmitted, de bene esse, for the consideration of this court. He farther stated, that he had additional proofs, taken since that time, to be used in this court; and he asked whether he should now be permitted to read these proofs, in order to show what was the nature of the evidence which existed, to clear away any former doubts in the cause.

[Mr. Chief Justice MARSHALL.

The court is of opinion that the affidavit transmitted from the circuit court may be now read. But as to the new proof now offered by the claimant, it is the practice of this court to hear the cause in the first instance, upon the evidence transmitted from the circuit court, and to decide upon that evidence whether it is proper to allow farther proof. The new proof cannot, therefore, be now read; but, as the opposite party wishes it, the counsel may state the nature of the proof, though not the contents thereof in detail. If the case shall ultimately appear entitled to farther proof, an order will be made for that purpose.]

Mr. D. B. Ogden, for the claimant, offered to read affidavits, as farther proof, which had not been taken under a commission. But they were rejected by the court; the cause was continued to the next term; and the farther proof ordered to be taken under a commission, according to the rule of court of the present term.

Vide APPENDIX, Note I.