The Ruby

20 F. Cas. 1299, 5 Mason C.C. 451

Opinion

STORY, Circuit Justice.

We are of opinion that the former order of the court ought not to govern us under the circumstances of the present application. It would be conclusive as to any testimony known to the district attorney, and which might have been taken by him under the authority of the former order. But this is the case of new evidence discovered since that order was made, and not in the contemplation of the parties when the former commission was executed. It is therefore the common case of an application by the party, to avail himself of new evidence material to the merits, where there has been no prior knowledge, and of course no laches on his part to affect his rights. Even after a trial, courts of law are in the habit of granting new trials under circumstances of this sort. And if so, there can be no just reason why the application should not be entertained in a suit in admiralty, addressing itself to the sound discretion of the court. The former must be necessarily restrained in its operation to evidence ante-cedently existing and known to the district attorney, so that it might be taken under the former commission. Motion granted.

[NOTE. The decree of acquittal pronounced in the district court (case unreported) was affirmed on appeal by the circuit court. Case No. 12,104.]