The Mabey

Supreme Court

The Mabey

77 U.S. 419, 19 L. Ed. 963, 10 Wall. 419, 1870 U.S. LEXIS 1134

CourtSupreme Court of the United States

DecidedDecember 19, 1870

StatusPublished

Cited by17 cases

This text of 77 U.S. 419 (The Mabey) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

The Mabey, 77 U.S. 419, 19 L. Ed. 963, 10 Wall. 419, 1870 U.S. LEXIS 1134 (1870).

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Opinion

Mr. Justice NELSON

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.

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Mr. Justice NELSON

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.

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77 U.S. 419, 19 L. Ed. 963, 10 Wall. 419, 1870 U.S. LEXIS 1134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-mabey-scotus-1870.

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