before me is by this notice of appeal. No one appeared for them in court at the oral argument, and I only found out that they were making any contest here by accidentally discovering a short statement of their points among the papers. Their cause was considered abandoned in the district court, and their intervention was ordered dismissed. I affirm that decision. The decree of the district court in this cause is affirmed. I have concluded to allow 6 per cent. interest-maritime interestupon the amount of the award from the date of the decree in the dis. trict court. Counsel, in preparing the findings and decree of this court, will conform to those of the district court in all respec'ts, except in the particular I have mentioned relative to the conditional settlement with Capt. Gray. For the word "apprehension" will be substituted the words "under the expectation and upon the hypothesis."
THE STONINGTON and THE WM. H. PAYNE. 1
(fM'cuit Oourt, E.
ADMIRALTY PROOFS IN CIRCUIT COURT-TESTIMONY WITHHELD IN DISTRICT COURT-CIRCUIT COURT RULES 4 AND 15.
On a trial in the district court, claimants put in no testimony, and, on the libelant's testimony and the pleadings, a decree was rendered in favor of libelant: On appeal to the circuit court, claimants offered in evidence the depositions of witnesses taken in the circuit court, under libelant's objection to them that the witnesses were not examined in the district court, though present or procurable. Held, that the libelant had substantially complied with rule 15 of this court, requiring cause to be shown against the admission of new proofs, and that those depositions as to which it was proved that the. witnesses had been present at the trial in the district court must be rejected, but not the others. On the pleadings and the new admissible proofs, the decision of the district court in favor of the libelant was affirmed.
Admiralty Appeal. Jas. K. Hill, Wing It Shoudy, for libelant, the Lehigh Coal & Navi.gation Co. Miller, Peckham It Dixon, for the Stonington. Carpenter d Mosher, for the Wm. H. Payne. BLATCHFORD, Justice. In this case the claimants of the two vessels libeled put in separate answers. At the trial the libelant produced two witnesses. The claimants put in no testimony. There was a decree for the libelant against both vessels. The claimants of both appealed to this court. The petition of appeal on behalf of the Payne states that on the appeal her claimant "intends to seek a new .decision on the law and facts, and to have said cause heard anew in
by R. D. & Wyllys Benedict, Esqs., of the New York bal'.
the circuit court on the pleadings and proofs in the district court, and other proofs to be introduced in the said circuit court." The petition of appeal on behalf of the Stonington states that on the appeal her claimant intends only "to have the said cause heard anew on the same pleadings and the same proofs, and such other proofs and testimony as may be offered." Rule 4 of this court (rule 119 of the circuit court for the Southern district of New York) provides that the written appeal shall "state whether it is intended on the appeal to make new allegatiuns, to pray different relief, or to seek a new decision on the facts; and the appellants shall be concluded in this behalf by the appeal filed." Rule 15 of this court (rule 130 of the circuit court for the Southern district of New York) is as follows:
"If tlle 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 d.ays of the term j otherwise, the apPllal shall be allowed according to its terms."
The final decree in the district court was entered March 18, 1885. 'rhe petition of appeal in the case bf the Payne was filed March 28, 1885, and that in the case of the Stonington, April 6, 1885. On May 16, 1885, the depositions of five witnesses on the part of the Payne were taken in this court, on notice, two of them being crossexamined on the part of the libelant. Before the examination commenced, the libelant entered on the record an objection to the taking of any testimony on the part of the Payne, on the ground that no testimony was taken on her behalf in the district court, "although the witnesses not produced were present, or, if not, were procurable, and might have been examined then." It is not shown that anyone of these five witnesses was present at the trial in the district court, or that his testimony could have been procured for that trial. On May 21, 23, and 29, 1885, the depositions of six witnesses on the part of the Stonington were taken in this court on notice, five of them being cross-examined on the part of the libelant. Before the examination commenced, the libelant entered on the record an objection to the taking of any testimony on the part of the Stonington, on the ground that no testimony was taken on her behalf in the district court, "although the witnesses were present or procurable." It appears by the record of their testimony that two of those six witnesses were present at the trial in the district court, but nothing is shown as to the other four. At the hearing in this court the depositions so taken in this court were offered as evidence against the libelant, and it took the objection that they should be rejected because they were not taken for, or the witnesses examined at, the trial in the district court. As authority for the rejection, the decision of the circuit judge in the case of The Saunders, 23 Fed. Rep. 303, in the circuit conrt for the Southern dis-
trict of New York, is invoked. In that case the opinion of the court states that the appellee moved to suppress the depositions of witnesses taken in this court by the appellant, "because, although the witnesses were present at the instance of the appellant, at the hearing in the district court, they were not examined." The motion was granted because the testimony had been deliberately withheld in the court below. I think the appellee has substantially complied with rule 15 in regard to the two witnesses for the Stonington who are shown to have been present at the trial in the district court, but not as to any of the other witnesses; and that, as to all but those two, the appeals must be allowed according to their terms; that is, with new proofs. As to those two, the ruling in The Saunders must be applied as the law of the circuit, so long as it stands unreversed by the supreme court. The two witnesses referred to are Coon, the bow watchman of the Stonington, and Griffin, her captain. Their depositions are rejected. The two witnesses in the district court were Waite, the captain of the Catasaqua, in tow of the Payne, and Hughes, the captain of the Hazard, in tow of the Payne. On their testimony, in connection with the pleadings, the district court held the Payne to have been in fault, because, although she gave to the Stonington a signal of two whistles, to which the latter made no reply, the Payne did not immediately stop and reverse her engine. The court was of opinion that if she had done so she could have kept her tow from striking the drilling-machine, notwithstanding the flood-tide; and that if, when she gave that signal to the Stonington, it was impossible for her to avoid the drilling-machine by stopping and reversing, she was in fault for having a tow which she could not control. The district court held the Stonington to have been in fault, because, receiving a signal of two whistles from the Payne, she did not immediately reply, but kept on, and then gave a signal of one whistle to the Payne, at a time so late as to cause the Payne, in order to avoid a collision with the Stonington, to stop at a point so near to the drilling-machine as to be unable to avoid a collision with it. These views are the same which result, as to each vessel, from her answer and from the new admissible proofs, and the1"e must be a decree in accordance with that of the district court, with costs to the libelant in both courts. This deciSIOn governs the case of The Continental Ins. Co., so far as the fa.cts of it are the same.
L. & T. S. S.
CO. 'V. DE ARROTEGUL 1
(Diaflrict Oourt, E. D. NeuJ York.
May 7, 1885.)
ADMIRALTY-PLEADING-NAMES OF PARTIES-EXCEPTION.
An averment in an answer in an action for salvage that "other Insurance companies" were insurers of property saved is insufficient, in the absence of an averment that their names are unknown.
In Admiralty. Exception to answer. Charles H. Tweed and R. D. Benedict, for libelant. Evarts, Southmayd d; Choate, (Treadwell Cleveland,) for claimant. BENEDICT, J. The exception taken to the answer is equivalent to a motion to make more definite and certain the averment of the second article of the answer, where it is alleged that "the Thames & Mersey Marine Insurance Company, Limited, and other insurance companies, were insurers" of the property saved. Manifestly this averment is uncertain, in that it does not designate by name the insurance companies referred to by the words "other insurance companies." In the absence of an averment that the names of such other insurance companies are unknown to the defendants, the allegation in the second article of the answer is insufficient. Exception sustained, with leave to defendants to amend.
IBeported by R. D. '" Wyllys Benedict., Esqa., of the New York bar.