The Mabey
Cases that cite this one
17 later published cases cite this decision.
- In re Hawkins (Supreme Court of the United States 1893)
- Nicaraguan Long Leaf Pine Lumber Co., Inc. v. Moody. The William G. Osment (5th Cir. 1954)
- Luksich v. Misetich (9th Cir. 1944)
- Lewis v. Trant (1st Cir. 1894)
- Martorano v. Hughes (District Court, E.D. New York 1966)
- Munson S. S. Line v. Miramar S. S. Co. (2d Cir. 1909)
- North Pac. Coast R. Co. v. Hall (9th Cir. 1905)
- J. T. Lunn Co. v. Cameron (5th Cir. 1893)
- The Hermosa (9th Cir. 1932)
- Maggio v. Mexico Arizona Trading Co. (9th Cir. 1932)
- Pioneer Fuel Co. v. McBrier (8th Cir. 1897)
- Hudson v. Grafflin (4th Cir. 1895)
- Red River Line v. Cheatham (5th Cir. 1894)
- The Saunders (U.S. Circuit Court for the District of Southern New York 1885)
- Laird v. State (Md. 1884)
- The “Juniata” (Supreme Court of the United States 1875)
- Black v. Woodrow (Md. 1874)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion
delivered the opinion of the court. No excuse is shown in the papers, on which the motion is founded, why the witnesses named, and proposed to be examined,, were-not examined in some one of the courts below before the hearing there. The affidavit simply states that the testimony of these witnesses is material,.as advised by counsel.
*420 This is not in accordance with the practice of the court. Some excuse, satisfactory to this court, should be shown for the failure to examine them in the courts below, such as that the evidence was discovered when it was too late to procure such examination, or that the witnesses had been subpoenaed and failed to appear, and could not be reached by attachments, and the like. *
Many of the cases bearing on this subject are cases of amendment in the appellate court by adding new allegations and giviug new proofs. † But they involve the practice applicable to motions simply to examine witnesses in the appellate court. There can be no substantial amendment in this court; but if the pleadings or evidence are so defective that no decree can be founded upon them, and the '•ase appear to have merits, the court will reverse the decree and remand the cause to the court below with directions to permit amendments and further proofs. ‡
It is quite apparent, if commissions were to be allowed by this court to issue as a matter of course, on a formal application under the twelfth rule, without requiring any excuse for not taking the evidence in the usual way before the courts below, the privilege would be open to great abuse, disturbing the orderly proceedings in courts of admiralty. Instead of taking proofs in the cause in the courts below, and there thoroughly trying it, much of the evidence could safely be omitted, relying on the new evidence in this court. There is no hardship upon the parties in guarding against this abuse with great care and strictness, as they have two opportunities to procure the attendance and examination of the witnesses before they come here on appeal; first, before the District Court, and again before the Circuit.
Motion denied.
The Boston, 1 Sumner, 328, 331: Coffin v. Jenkins, 3 Story, 108; The William, 7 Irish Jurist, 354; Jarvis v. Chandler, 1 Turner & Russell, 319.
Parsons on Shipping, 2 vol., pp. 429, 430, 431, and note; Conklin’s Admiralty, pp. 418, 419; Lamb v. Parkman (2d Circuit, per Curtis, J.), 21 Law Reporter, 589.
Brig Caroline, 7 Cranch, 496-500; Mary Anne, 8 Wheaton, 380.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.