VOL. 2. party should be required to address his application for leave to amend, to that court, instead of seeking to obtain it by resorting to an appeal(a).

Of the right to give new evidence in the appel

late court.

It remains now briefly to notice the second branch of the rule under consideration, asserting the right of the parties to prove, in the appellate court, what has not before been proved. Respecting the prac tical import of this maxim, under our system of admiralty jurisprudence, I should not have entertained a doubt, but for what has in one case been said by the eminent jurist to whose decisions it has been necessary, in the course of this work, so frequently and so constantly to refer, and of whom it has, by another learned and distinguished admiralty judge, been justly observed, that "if it shall hereafter appear, on more profound and critical examination, that error has, in some cases, crept into his judicial opinions, it will also be found that he has left as great a number of judgments behind him, which will remain to future ages, permanent landmarks of the law, as any other judge that ever sat upon the bench in this country, or in Eng

(a) The learned reader who is familiar with the rules of the courts of the United States for the Southern District of New-York, will not fail to perceive, that so far as they recognize the right of the libellant to file a new libel and virtually to institute a new sujt in the circuit court, at his own option, they are irreconcilable with what the author has found himself compelled to adopt as the true import of the rule that the parties are entitled in the appellate court to allege what has not before been alleged. He trusts, it is hardly necessary to add, that he is induced to notice this conflict by no arrogant or censorious spirit, but only for the purpose of excluding any inference either that he was not aware of the existence of the particular rules to which he has above alluded, or that he had misunderstood them.

this right

extends to

original allegations,

unless, etc.

land(a)." The observation to which I refer is this: CHAP. 12. After adverting to what he denominates "the well known usage of admiralty courts, even after appeal, in fit cases, in their discretion, to allow either party to file new allegations and proofs, non allegata allegare, et non probata probare'- he adds: "There Whether is a restriction, too often forgotten in practice, modo non obstet publicatio testium, the effect of which is to exclude new testimony to the old articles, or to those of which no proof was formerly given. In the actual frame of our laws, the restriction is in many cases overlooked, or abandoned; but it is still retained in prize causes, where further proof stands upon the direct order of the court itself." The authority cited by Mr. Justice STORY in support of the restriction mention, is 1 Browne's Civil and Admiralty Law, 500, 501; 2 id., 436, 437(6). This

(a) Remarks of Judge WARE in the District Court of the United States for the District of Maine, responsive to Resolutions adopted by the Bar on the occasion of the death of the late Mr. Justice STORY,

I cannot forbear to quote the following additional observations of Judge WARE, Scarcely less honorable to the illustrious subject of his eulogy: "But there is one quality in the judicial opinions of Judge STORY, in which, if they are not altogether preeminent, they are not surpassed by those of any other judge in the annals of jurisprudence. If there be latent error in them, they usually themselves furnish the means by which it may be detected. For such was his conscientious diligence, the extent and profoundness of his learning, and the fertility of his mind, that the subject was seldom dismissed until it had been analyzed with the most thorough exactness—until all its analogies and distinctions had been critically examined the whole dissected by a most subtle and accurate logic, and over all had been thrown the light of all the learning that pertained to the matter."

(b) The Schooner Boston and Cargo, 1 Sumner's R., 328, 331. In the report, 2 Browne, 500, 501, is erroneously printed for 1 Browne, 500, 501.

VOL. 2.

Further

time to obtain new proof not allowed in cases of laches.

restriction was designed to guard against perjury and abuse. But under our system they cannot be enforced; and no effort appears to have been, or is likely to be made to do it. The hearing in the circuit court must, from the nature of the case, be virtually a new trial as in a suit at common law. The parties cannot be restricted to the same course of inquiry in the examination of their witnesses in the appellate court, that was adopted in the district court; nor can a witness be precluded from correcting any error into which, on his first examination, he may have fallen; nor, being sworn to speak the whole truth, can he be restrained from supplying any deficiencies in his original recollections. Neither can the party be restricted to the same witnesses; for those produced in the court below may have gone to parts unknown, or died in the mean time. Besides, the matter introduced by the new articles will generally be so closely related to that contained in the old, and so intimately blended with it, as to render it impracticable to confine the witnesses exclusively to the former.

The appellate court ought undoubtedly to guard itself, by rigid scrutiny, against imposition by means of new evidence; and in case further time is demanded for the purpose of obtaining such evidence in support of the original allegations of the party, unless it shall appear that the evidence could not have been produced in the court below, the indulgence will not be granted: and in no case will further time be allowed for this purpose, unless it be shown that the new evidence is material.

Thus

in a case before Mr. Justice JOHNSON, already cited, CHAP. 13. in which the question was, first, whether, in any case, new evidence could be adduced in the appellate court; and, secondly, whether, in the case before him, time ought to be allowed for the purpose, the learned judge said his "decision on the second point must depend upon the nature of the evidence proposed to be adduced, and the sufficiency of the grounds set forth in the affidavit to show that the inability of the claimant to produce such evidence at the time was not attributable to his own laches;" and he proceeded to narrate the facts, and conformed his decision to the rule he had laid down.

MODE OF PROOF ON APPEAL.

I proceed now to consider the second of the two subjects above indicated as especially requiring notice, viz., the mode of proof on appeal in the circuit court. The necessity of this discussion, also, arises from a dictum of the late Mr. Justice STORYwhose opinions concerning everything pertaining to admiralty jurisprudence are so highly and so justly influential—and from certain vague, and, as they appear to me, erroneous impressions upon the subject, entertained by others. I have already, in a former chapter(a), adverted to the legislative enactments on which this question chiefly depends; the most important of which is that contained in the 30th section of the Judiciary Act, enjoining the examination of witnesses, viva voce, in open court,

(a) Supra, chapter x.

VOL. 2.

When the evidence of

a witness may be ordered to be taken

down by the clerk.

in equity and admiralty causes as well as in suits at law. The injunction is absolute and unqualified; and if a doubt could otherwise have been enertained whether this provision was intended to embrace proceedings in an appellate as well as in the original court, the same section contains another provision which precludes the possibility of such a doubt, and it is this: That "in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court that probably it will not be in his power to produce the witnesses there testifying before the circuit court, should an appeal be had, and shall move that their testimony be taken down in writing, it shall be so done by the clerk of the court; and if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court which shall try the appeal, that the witnesses are dead or gone out of the United States to a greater distance than as aforesaid [one hundred miles] from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, they are unable to travel and appear at court, but not otherwise." It is true this important section recognizes, by way of proviso, the power of the courts to grant commissions "to take depositions according to common usage;" but it is expressly restricted to cases "where it may be necessary to prevent a failure or delay of justice."

Whether it is wise to allow the evidence of witnesses to be taken in writing, out of court, in any