IN RE HAWKINS , 147 U.S. 486 (1892)

admiralty treat an appeal as a new trial, in which new pleadings and new proofs are permitted in furtherance of justice. But it is not a matter of course to allow parties who have withheld evidence available to them in the district court to present such evidence on appeal. Such was declared to be the law of this circuit in The Saunders, 23 Fed. Rep. 303, and The Stonington and The Wm. H. Payne, 25 Fed. Rep. 621. It is unnecessary to add anything to the discussion of this question in the case of The Saunders. The decision therein seems to be in entire accord with the authorities, and, when objection is raised, the party offering the new evidence should show some good reason, if any, why it was not produced before.'

It was within the proper scope of the power of the circuit court of appeals to make the rules promulgated to take effect July 1, 1892, so far as they affect the procedure in taking new proofs on appeal in admiralty cases.

The learned counsel for the petitioner, as will appear by his brief, in support of petition for mandamus, on page 5, has thought it necessary to criticise the judicial decision and determination of one of the learned judges of the circuit court of appeals, a lawyer who has occupied one of the most important legal positions in the city of New York, and who, as a lawyer and as corporation counsel, and as a judge of the circuit court and of the circuit court of appeals of the United States, has always sustained the highest respect, esteem, and approval of the whole bar of the city of New York. Though the application is primarily made for a mandamus to reverse a certain order suppressing testimony, and which, of course, would only affect the respondent in this case, the learned counsel for petitioner has gone intentionally out of his way in this application, not only to assail the rules passed by the circuit court of appeals, but to assail personally the honorable judges or a judge thereof. It is for this reason that we have entered into a discussion of this point, and for this reason alone, as we believe that the consideration of the legality of the rules of the circuit court of appeals are not involved in this application. This last fact is admitted by the learned counsel for the libelant in this motion, as he claims such rules have no application to this case.

Section 917 of the Revised Statutes of the United States provides as follow: 'The supreme court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writ and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discoveries, of proceeding to obtain relief, of drawing up, entering, and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice to be used in suits in equity or admiralty by the circuit and district courts.'

Section 918 of the Revised Statutes of the United [490-Continued.]

States provides as follows: 'The several circuit and district courts may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the supreme court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice, and the prevention of delays in proceedings.'

Section 862 of the Revised Statutes of the United States provides as follows: 'The mode of proof in causes of equity and of admiralty and maritime jurisdiction shall be according to rules now or hereafter prescribed by the supreme court, except as herein specially provided.'

The petitioner, and also the learned amici curae, who have thought fit to submit the brief on the petitioner's application herein in regard to the rules which the circuit court of appeals for the second circuit have adopted, (though these rules are not in any wise involved in the application before this court,) have taken the position that the taking of further proof or testimony on an appeal from the district court to the circuit court, or from the district court to the circuit court of appeals, as is now provided in admiralty cases, was a right to which they were entitled as a matter of course, and that the testimony of any witnesses, and of whatever nature, might be taken, and that, having been so taken, it must be received and accepted in evidence by the court on such appeal, and that there was no discretionary power in the appellate court as to what the nature of this further testimony should be, or what witnesses should be examined.

The learned counsel for the petitioner herein virtually admits that a long line of decisions of the circuit court and of the circuit court of appeals since it has been organized and of the supreme court of the United States, (upon whose rules the circuit court of appeals are modeled,) have been entirely erroneous, and that the judges of such courts have erred from the mysterious and somewhat undefined rule of practice or procedure in the admiralty courts, and have somewhat revolutionized them, and conformed them to the present age and progress of civilization. Though the learned counsel has submitted a brief in which the leading members of the admiralty bar of the second circuit have joined, any authority or law showing that the right to take further proof or testimony on an appeal from the district court to the circuit court, or from the district court to the circuit court of appeals, is a matter of right in any and all cases. The right to take such further proof or testimony in such an appeal is not granted by the Revised Statutes of the United States; neither is it granted by the supreme court in the rules prescribed by it for admiralty cases. [490-Continued.]

Section 913 of the Revised Statutes of the United States prescribes as follows: 'The form of mesne process, and the forms and modes of proceeding in suits of equity and of admiralty and maritime jurisdiction in the circuit court and district courts, shall be according to the principles, rules, and usages which belongs to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute, or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the supreme court, by rules prescribed, from time to time, to any circuit or district court, not inconsistent with the laws of the United States.'

Section 698 of the Revised Statutes of the United States provides, upon appeals to the supreme court, that in admiralty and prize cases new evidence may be received.

Subdivision 2 of rule 12 of the supreme court provides as follows, (3 Sup. Ct. Rep. ix.:) 'In all cases of admiralty and maritime jurisdiction, where new evidence shall be admissible in this court, the evidence or testimony of witnesses shall be taken under a commission to be issued from this court, or from any circuit court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories to be filed by the party applying for the commission and notice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross interrogatories within 20 days from the service of such notice: provided, however, that nothing in this rule shall prevent any party from giving oral testimony in open court in cases where, by law, it is admissible.'

Rule 49 of the rules of practice for the courts of the United States in admiralty and maritime jurisdiction on the instance side of the court in pursuance of the act of the 23d of August, 1842, c. 188, provides as follows: 'Further proof taken in a circuit court upon an admiralty appeal shall be by deposition taken before some commissioner appointed by a circuit court, pursuant to the acts of congress in that behalf, or before some officer authorized to take depositions by the thirtieth section of the act of congress of the 24th of September, 1789, upon an oral examination and cross-examination, unless the court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a commission to issue to take such depositions upon written interrogatories and cross interrogatories. When such deposition shall be taken by oral examination, a notification from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall be pending, to the adverse party to be present at the taking of the same, and to put interrogatories, if he think fit, shall be served on the adverse party or his attorney, allowing time for their attendance after being notified, not less than twenty-four hours, and, in addition thereto, one day, Sundays [490-Continued.]

exclusive, for every twenty miles travel: provided, that the court in which such appeal may be pending, or either of the judges thereof, may, upon motion, increase or diminish the length of notice above required.'

By a careful reading of the foregoing citations it will appear that the only statutory authority for allowing new evidence to be received on appeal as a matter of right is that conferred by section 698 of the Revised Statutes, which refers only to the supreme court of the United States. Rule 12 of the supreme court simply applies to that court, and provides that in all cases of admiralty jurisdiction, where new evidence shall be admissible, it shall be taken in the manner prescribed by such rule. Rule 49 of the admiralty rules of the supreme court simply provides that further proofs taken in the circuit court upon an admiralty appeal shall be taken in the manner therein prescribed; that is to say, such further proofs as shall be admissible. By reference to section 913 of the Revised Statutes of the United States it appears that a provision is made for proceedings in admiralty where other provision is not made by statutes or by rule of court, and that by such section it is provided that the principal (rules) and usages which belong to courts of admiralty shall govern where no other provision is made.

It thus appears that the only authority for taking this further proof on appeal from the district court to the circuit court or to the circuit court of appeals is based upon the former principles, rules, and usages of admiralty. Mr. Justice Story in the case of The Boston, in 1 Sumn. p. 328, says, at page 331: 'For it is the well-known usage of admiralty courts, even after an appeal, in fit cases, in their discretion, to allow either party to file new allegations and proofs; 'non allegata allegare et non probata probare.' There is a restriction too often forgotten in practice,- 'modo non obster publicatio testium,'-the effect of which is to exclude new testimony to the old articles, where any has been already offered, and to confine it to the new articles, or to those of which no proof was formerly given. This restriction is founded upon the same principles as the chancery practice not to admit, after the publication of the testimony, any new proofs, and was probably derived from a common source,-the civil law.' Citing 1 Browne, Civ. & Adm. Law, p. 449; 2 Browne, Civ. & Adm. Law, p. 436.

In 1 Browne, Civ. & Adm. Law, the following appears: 'It remains to be observed that the proceedings in causes of appeals from grievances are similar to those in appeals from definitive sentence, as to contestation of suit, conclusion, and other judiciary and ordinary acts, and, if the principal or original cause be plenary or summary, so will also be the cause of appeal, save only that all the proceedings before the court of delegates are summary. There is, however, one remarkable exception to this similarity of proceedings in appeals from gravamina and from definitive sentence, which is that in the former the party is not allowed 'non allegata allegare' and 'non [490-Continued.]

probata probare.' This rule is the converse of that followed on appeals to the house of lords, and Mr. Justice Blackstone has observed that it is a practice unknown to our law, (though constantly followed in the spiritual courts,) when a superior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evidence never produced below. This remarkable rule that in appeals from definitive sentence either party may, 'non allegata allegare' and 'non probata probare,' is found in the Code, lib. 7, tit. 63, 4, and in the Clementines, lib. 2, tit. 8, c. 2. It is in both places restrained to new articles, 'novi articuli ex veteribus pendentes,' and 'ex illis orientes,' and 'ad causam pertinentes.' On the same article exhibited below, to which proof was adduced, or their direct contraries, no new evidence can be produced; but on those exhibited below, but not proved, there may; and so to new articles which may be exhibited, of they are not upon perfectly new matter, arise from the former, and spring out of them, and are related to the cause. The rule of 'non allegata allegandi, non probata probandi,' hath also this tack to it: 'modo non obstet publicatio testium.' The new allegation or proof, therefore, must be something which should be suggested or occasioned by the evidence already published, though it should spring out of the proceedings below.'

In 2 Browne, Civ. & Adm. Law, 436, the following appears: 'Another remarkable distinction between appeals from grievance and those from definitive sentence is that in the former the appellant is allowed to produce new evidence, under certain restrictions, 'non allegata allegare' and 'non probata probate,' 'modo non obstet publicatio testium;' and the proofs are confined 'novis articulls ex veteribus pendentibus, ad causam pertinentibus,' whereas the appeal from a grievance must be supported by showing the proceedings of the court, and from the very acts of the judge.'

It thus appears that even under the former principles, rules, and usages of admiralty the taking of further proof on appeal was not a matter of right, but was simply a practice which had grown up by common usage from the court allowing the respective parties to take such proofs, in fit cases, as the court should deem advisable. It was occasioned by reason of the peculiar circumstances surrounding the witnesses in causes pending in such courts; it being almost impossible to have present at the trial the various witnesses who might be material and necessary for the respective parties, owing to the witnesses being seafaring men, sailing at different times from port to port, and seldom remaining long in the place where the trial usually took place. By reference to section 30, 1 U.S. St. at Large, at page 88, it will appear that this reasoning is substantiated by provisions made in such section. By such it was provided that witnesses who might not be able to be present in the appellate court in cases when an appeal could be taken might have their testimony taken by the modes provided in such section. This, of course, gave the parties appealing a full knowledge of [490-Continued.]

what testimony their adversaries possessed, and was an essential element in determining whether an appeal should be taken by either.

If, then, the taking of these further proofs on appeal in admiralty court is not one of absolute right, but is one which the judges of the appellate court have a discretionary power to all or refuse, the appellate courts necessarily have the power to provide rules for the procedure, or in what cases such testimony may be taken. The act of March 3, 1891, by which the United States court of appeals was established, by section 2 of such act, gave such court the following power: 'Such court shall prescribe the form and style of its seal and the form of writs and other process and procedure as may be conformable to the exercise of its jurisdiction as shall be conferred by law. ... The court shall have power to establish all rules and regulations for the conducting of the courts within its jurisdiction, as conferred by law.'

The rule of which the petitioner here complains is rule 7 of the rules of said court, promulgated by the United States circuit court of appeals for the second circuit on July 1, 1892, which provides as follows, 'Upon sufficient information shown, this court, or any judge thereof, may allow either appellant or appellee to make new allegations, or pray different relief, or interpose a new defense, or take new proofs. Application for such leave must be made within 15 days after the filing of the apostles, and upon at least four days' notice to the adverse parties.'

Prior to this rule, a rule in force in the circuit court of the same division was as follows: 'Rule 130 of rules of appeals of the rules of the circuit court of the United States for the southern district of New York: If the appellee shall have any cause to show why new allegations or proofs should not be offered or new relief prayed on the appeal, he shall give four days' notice thereof, and serve a copy of the affidavit containing the cause intended to be shown, and such cause shall be shown within the two first days of the term; otherwise the appeal shall be allowed according to its term.'

As to the right of the court to make such last above mentioned rule we have never heard any question. In fact the rule which the petitioner claims in his brief at page 2 of the brief of the amici curiae was recommended by the committee of the bar for adoption as a rule for practice of the circuit court of appeals in the second circuit was almost identically the same. That rule and the rule last above mentioned are simply a converse of the rule now in force by the circuit court of appeals. In other words, the old rule throws the initiative and the burden of proof upon the party who objected to the taking of further proofs by the other party, and compelled him to satisfy the court why such further proofs should not be taken; and then it was in the [490-Continued.]

discretion of the court to refuse or allow such depositions to be taken.

The new rule as promulgated by the circuit court of appeals, on the other hand, throws the initiative and the burden of proof upon the party who desires to take such testimony to satisfy the court that it is a proper case, and then it is in the discretion of the court to grant or refuse such motion. The difference between these two rules in their result seems to us to be practically nothing. By the present rules the circuit court of appeals have adopted a practice which is more speedy and less expensive than the old practice of moving to suppress. Before any labor or expense is incurred in procuring the testimony, the court must, in its discretion, determine whether such proof can be offered.

In the present case before us it will appear that under the old rules, under which this testimony was taken, the petitioner was entitled to take this testimony, as far as the mere taking of it was concerned, and that he did take it, though the taking of the same was objected to specifically by the respondent at the time such testimony was taken; that the petitioner was obliged to incur the expense of a stenographer, and to have such proofs printed; and that then the respondent was compelled to make a motion to suppress the testimony to bring the matter properly before the court. Then it became the duty of the court, in its judicial discretion, to say whether, although this testimony had been taken, the petitioner should have taken it, and whether it should be admitted in evidence. See rule 21 of the circuit court of the northern, southern, and eastern districts, promulgated May, 1885; also rule 25, to same effect; rule 130 of rules 1884.

We think that no other conclusion can be arrived at than that the new rule which has been adopted by the circuit court of appeals for the second circuit is most beneficial in all respects, and a vast improvement over the old proceeding in matters of this char acter. In fact it is almost identical with that of the supreme court, (rule 12.) The learned counsel for the petitioner, in his brief on this motion for the suppression of the testimony, entered into a long discussion as to the meaning of the word 'procedure' as used in the act of 1891, and argued that the term 'procedure,' as used in the act of 1891, is to be taken as synonymous with the phrases, 'practice,' 'pleadings,' and 'forms,' and 'mode of proceeding,' as used in section 914 of the Revised Statutes of the United States, and endeavors to show on the authority of certain cases cited by him that the phrase used in section 914 of the Revised Statutes excludes rules of evidence and rules as to the modes of taking evidence, and he concludes that the circuit court of appeals has no power to make rules as to the mode of taking evidence such as the seventh rule adopted by the said circuit court of appeals.

The word 'procedure' has been defined by Anderson, in [490-Continued.]

his Dictionary of Law as follows: 'Rpocedure. The body of rules, whether of practice or pleadings, whereby rights are effectuated through the successful application of proper remedies. Opposed to the sum of the legal principles which constitute the substance of the law, and also distinguished from the law of evidence. The term is so broad that it is seldom employed as a word of art; it including whatever is embraced by the three technical terms, 'pleadings,' 'evidence,' and 'practice;' 'practice' here meaning those legal rules which direct the course of proceeding to bring parties into court, and the course of the court after they are brought in; and 'evidence' meaning those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted.'

The cases cited by counsel for petitioner do not bear him out, even assuming that the phrase used in section 914, and the terms used in the act of March 3, 1891, are synonymous. None of them really hold that the phrase given to the testimony admitted.' of proceeding' in section 914, Rev. St. U. S., excludes rules as to the methods of taking evidence and similar matters. It is also to be borne in mind in examining these cases that in the main the subjects of evidence and of the modes of taking evidence were covered by United States statutes already in force in 1872, when the provision found in section 914 of the Revised Statutes took effect, and that for that reason section 914 could seldom apply to these subjects. Moreover, section 914 prescribes conformity to state procedural law only 'as near as may be,' and United States courts have regarded this phrase as widening their discretion to hold that certain matters that might commonly be understood to fall under the terms 'practice' and 'procedure' would nevertheless not fall within the terms of section 914.

In Ex parte Fisk, 113 U.S. 713 , 5 Sup. Ct. Rep. 724, section 914 is held to be inapplicable, on the ground that as to the particular point in question provision is made by United States statutes, and that the state statute is thus overridden. The court appear to consider the point in question (whether a party might be examined as a witness by his adversary before trial) as falling within the language of section 914, (see page 720, 113 U. S., and page 727, 5 Sup. Ct. Rep.,) but go on to point out that such section does not apply, for the reason just mentioned.

The decision in Beardsley v. Littell, 14 Blatchf. 102, rests upon the same ground, that express United States statutes apply to the case, and so prevail over the state practice.

In Nudd v. Burrows, 91 U.S. 426 ; Railroad Co. v. Horst, 93 U.S. 291 ; and Chateaugay Ore & Iron Co., Petitioner, 128 U.S. 544 , 9 Sup. Ct. Rep. 150,-the matters respectively in question are held not to fall within the terms of section 914, not on the ground that they are provisions as to the taking of [490-Continued.]

evidence, but, in the first case, because the provisions of the state law were deemed 'to fetter the judge in the personal discharge of his accustomed duties, and in the othr cases for somewhat similar reasons; and therefore were not deemded to come within the intention and object of section 914, as conceived by the court. The court say, in the case last mentioned, at page 554, 128 U. S., and page 153, 9 Sup. Ct. Rep.: 'The object of section 914 was to assimilate the form and manner in which the parties should present their claims and defense in the preparation for the trial of suits in the federal courts to those prevailing in the courts of the state.' Similar views of the object of the statute are expressed in the other cases cited. It is thus seen that the courts have construced the above-quoted phrase in section 914 in a somewhat narrow sense, in view of the special purpose of the statute, and the state of things it was intended to remedy.

The language by which, in the act of March 3, 1891, establishing the United States circuit courts of appeals, these courts are empowered to provide for their own practice, is to be construed with reference to the purposes and intention of the act. The act provides, (section 2:) 'Such court shall prescribe the form and style of its seal, and the form of writs and other process and procedure as may be conformable to the exercise of its jurisdiction as shall be conferred by law.' Also, (section 2, end:) 'The court shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law.'

Thus the act employs a variety of terms and expressions, including the general term 'procedure;' and the intention appears to be to confer upon the court all that power to regulate its whole practice and procedure, in the broad sense of those terms, that is usually exercised by courts, and (more particularly) all power of this kind that has been exercised by the circuit and district courts of the United States. So much power, at least, must be deemed to be given by the act to the new appellate courts, unless the language of the statute be clear and unmistakable to the contrary.

Section 917 of the Revised Statutes empowers the supreme court to regulate 'the whole practice' to be used in equity and admiralty by the circuit and district courts. And by section 918 of the Revised Statutes, and also by admiralty rule 46 the circuit and district courts are authorized generally to regulate their own 'practice,' (subject to United States statutes and to the rules prescribed by the supreme court under section 917.) As to what was intended by the language of these sections and of rule 46, and particularly by the term 'Practice,' used therein, the practical construction which has always been given to them by the courts acting under them should have great weight. It will be seen by reference to the admiralty rules, and also to the rules of the separate circuit and district courts, that various provisions as to the methods of taking evidence and [490-Continued.]

similar points were made thereby. That a long and uninterrupted practice under a statute is regarded as good evidence of its construction is a familiar doctrine. McKeen v. Delancy's Lessee, 5 Cranch, 22. Rules as to the method of taking evidence and the time when evidence shall be taken are not so much rules of evidence as of practice. It is not to be supposed that congress, by the act of March 3, 1891, intended to confer upon the new appellate courts less power in the making of rules than has always been deemed under statutes employing language substantially similar to belong to the inferior courts.

In Bryant v. Leyland, (Cir. Ct. D. Mass. 1881, per Lowell, C. J.,) 6 Fed. Rep. 125, which was an action at law, a motion was made that defendants be required to answer certain interrogatories filed in the clerk's office, in accordance with the practice of the state. The court says: 'Speaking generally, the method of obtaining evidence to be used at a trial would be a part of the practice and modes of proceeding of the courts. It is so understood by congress, which gives the supreme court power to prescribe such modes of obtaining evidence and discovery as it may see fit, not inconsistent with any statute. Rev. St. 917. This provision seems to me to weaken very much the argument so ably presented by Judge Dyer in Easton v. Hodges, 7 Biss. 324, that the legislation of congress is intended to cover the whole subject of evidence, and to exclude it from the domain of practice altogether. ... The practice act of 1872, 5, (17 St. p.197,) provided that nothing in that act should alter the rules of evidence under the laws of the United States. In re- enacting this section, this proviso has been dropped, and is not to be found anywhere in the Revised Statutes. The reason for omitting it may be assumed to be that the rules of evidence are no part of the practice or forms or modes of proceeding, as they certainly are not in general, though the mode of obtaining evidence is.'

But besides the question whether this is a question of practice or procedure, the authority vested in the circuit and district courts in cases of admiralty, by section 913 of the Revised Statutes, was based upon the principles, rules, and usages which belonged to the admiralty court, except as where otherwise prescribed by the rules of the supreme court; and, as we have previously shown, the supreme court has not prescribed, nor has the statute prescribed, in what cases this testimony shall be taken, and therefore the determination of the right to take this testimony, and in what cases it shall be taken, lies within the discretion of the judge of that court, according to the principles, rules, and usages of the admiralty courts.

There can be no question that there may be written rules and oral rules, and that rules may be established by a long line of decisions and practice to the same force and effect as if they were formally promulgated by the court; and the court having the power to determine by principles, rules, and usages of admiralty in what cases this testimony shall be taken, must [490-Continued.]

surely have the power to promulgate it by written rules. Moreover, under the act creating the present circuit court of appeals, in cases of admiralty they become appellate courts of final jurisdiction. From such courts there is no right of appeal or writ of error or review by the supreme court. In this way they differ from the former jurisdiction of the circuit courts. The circuit courts, though of appellate jurisdiction, were merely intermediate courts, and an appeal might be taken to the supreme court.

It therefore must impress itself upon this most honorable court most strongly that it is contrary to all justice and equity to hold that these circuit courts of appeals, whose decisions within their jurisdiction are final, shoul still be treated, in the contemplation of the act of March 3, 1891, as simply intermediate courts of appellate jurisdiction. It would be simply holding that the circuit court of appeals assumes original jurisdiction in admiralty cases, and that the appeal therein is to be tried de novo, as if there had been no trial below. It would thus be resolving those courts into courts of original jurisdction, from which no appeal could lie. On this point we therefore most respectfully submit to this honorable court that the circuit court of appeals for the second circuit was fully empowered to make rule 7, and the subsequent ones relating thereto.

It is the well-established rule of law that on an appeal in admiralty to the circuit court involving questions of fact depending upon confiicting testimony, the decision of the district judge, who has had the opportunity of seeing the witnesses and judging from their appearance, should not be reversed, unless it clearly appears that the decision was against the weight of evidence. The Ludvig Holberg, 43 Fed. Rep. 117; The Excelsior, 40 Fed. Rep. 271; The Saratoga, Id. 509; William H. Vanderbilt, 37 Fed. Rep. 116, 118; Duncan v. The Gov. F. T. Nicholls, (Cir, Ct. E. D. La., decided in 1890,) 44 Fed. Rep. 302; Mentz v. The Sammy, 44 Fed. Rep. 624; Levy v. The Thomas Melville, 37 Fed. Rep. 271, 272; The Sammie, 37 Fed. Rep. 907, 908; Morse v. Coal Co., 36 Fed. Rep. 831, 832; Guimarais' Appeal, (Cir. Ct. E. D. Pa., 1886,) 28 Fed. Rep. 528; The Sampson, (S. D. N. Y. 1857,) 4 Blatchf. 28; The Florida, 4 Blatchf. 470, 471; The Sunswick, 5 Blatchf. 280, 281; The Grafton, (Cir. Ct. S. D. N. Y., Oct. 1846,) 1 Blatchf. 173, 178.

Geo. A. Black, for petitioner, (brief originally filed in the circuit court of appeals in opposition to motion to suppress further proofs, and now attached to the petition.)

>>Geo. A. Black, for petitioner, (in support of application in addition to brief annexed to petition.)

[490-Continued.]

John Murray Mitchell, for respondent.

THE CHIEF JUSTICE.

This is an application on behalf of John P. Hawkins for leave to file a petition for a writ of mandamus to the circuit court of appeals for the second circuit and to the judges thereof, commanding them to receive and duly consider certain depositions or further proofs taken by petitioner on appeal in an action pending in that court, wherein he is the libelant and appellee. The depositions in question were suppressed by the court on motion and for reasons given.

We cannot, by mandamus, review the judicial action thus had in the exercise of legitimate jurisdiction. In re Morrison, 147 U.S. 14 , 13 Sup. Ct. Rep. 246; Ex parte Morgan, 114 U.S. 174 , 5 Sup. Ct. Rep. 825; Ex parte Burtis, 103 U.S. 238 ; Ex parte Schwab, 98 U.S. 240 .

Leave to file the petition is denied.

Application in behalf of John P. Hawkins for leave to file a petition for a writ of mandamus to the circuit court of appeals for the second circuit, and the judges thereof, commanding them to receive and duly consider certain depositions or further proofs taken by petitioner on appeal in the case of John P. Hawkins, libelant and appellee, against the yacht Lurline, (William B. Whetmore, claimant and appellant.) The depositions in question were stricken out on the motion of the appellant, the circuit court delivering the following per curiam opinion: