for· the examination of defendant's counsel, and for use as evidence herein. if defendant be so advised, the full text. either original papers or copies. of said. application, and of all corresponaence in relation thereto which has passed between the patent-office and the said Edison, or the complainant herein. or his or ita attorneys."
Sufficient ground for the making of such an order, if it be within the power of the court to make it, is not shown. It does not appear that the commands of the 8ubpama duces tecu.m will not be ample to obtain such evidence as that described in the motion. Merchants' Nat. Bank v. State Nat., Bank, 3 Clifl'. 202; Bischo.ffsheim v. Brown, 29 Fed. Rep. 341. Certainly as to the letters from the patent-office, the originals of which' are in the possession of the complainant, the writ of subpoona should producethe bes.t evidence; and as to the copies of the application and of the letters to'the patent-offlGe, sufficient foundation having been laid for the admission of secondary evidence, they may be offered, when produced and identified, with the same effect as if they were originals. rJ;'he notice of however, also contains a prayer for general reo lief,. ,anf!,. uMer that prayer ,the qefendant may take an order commitplppers, of the corporation, for contempt in failing to obey the Stibjiterici ducetl tecUm; .,.' . '
et al. ".
:, (OtfCUit OCYUrt, S.D. N/?/W York. November 18,1800.>
. . .A.fter. It libel for collision had been
against libelants an4 a stipulation entered mto by both parties to dismiss the action. libelants asked a rehearing, on the g.r.oUtid of t.he· newlt-dl.·scov.ered evidence of passeng-ers. Of. the libeled s.teamship. Libelants had a list of these passengElrs at the trial, but did not know their residences. Their affidavit alleged that they had afterwards learned the residences of these passengers through the Spanish consul. Held, that a rehearing would not be granted, as no excuse was given for failure to find the passengers' rllsidences by the same means before the trial. . N Oil It ground for such rehearing that new evidence bas become available through some of the steamer's crew, where libelallts, before the trial, bad a full list: of such crew, and knew which of them claimants would not examine as witnesses, but. did not call any of them.
Nor is it ground for such rehearing that libelants have discovered a witness who .. was in sight.of the steamer the morning after the collision, where information of tpe such witness was obtained from the diary of a passenger, so that, if the passenger had been found before the trial, the witness have been Newly-discovered expert evidence as to the distance at which shore lights can be seen, ,and! 'as to the effect of a change of helm in giving a list to a vessel, is no ground for such rehearing, as sucb evidence might have been obtained at the triaL
4. SAME-ExPERT EVIDENCE.
In George A. Blacle, for Hatch. Goodrifh, Deady &- Good?Vich, for the Newport.
lIATCH V. THE NEWPORT.
LACOMBE, Circuit Judge. After the final d:ebisiohof this court upon motion for a rehearing, rendered April 9, 1889, (38 Fed. Rep. 669,) a stipulation to discontinue the action was on June 4, 1889, entered into by both parties. This was done at the request of the libelant, ostensibly to save the expense of entering and satisfying the decree of the circuit court, and the costs of district and circuit courts were thereupon paid by him. Had this stipulation not been made, it must be assumed that the claimant would have entered the final decree in regular course. Had such final decree been entered, this court would be precluded by its rule from granting a rehearing. Dist. Ct. Rule 155; Cir. Ct. Rule 136; Hogg v. The Annex No.3, 27 Fed. Rep. 516, 35 Fed. Rep. 560, (E. D. N. Y.) Without passing upon the question whether, when the decree has been entered, the court may relieve a party from the operation of such a stipulation at any time, it would be sufficient for the disposition of the present motion to hold that the libelant, having, by means of the stipulation, induced the claimant to refrain from entering a. final decree, should be held to the strictest application of the ordinary rules by which motions for rehearing are tested. Such motions are not granted where the new evidenge which a party seeks to introduce could by the exercise of proper diligence have been produced on the.'. trial. All the new witnesses named by the libelant may be divided into five groups: . 1.Passertgers. Before the trial the libelant had obtained a'list of the passengers from the Spanish consul. This list gave no residences, a,nd the detectives employed by him were ablato discover veryfew ofthem, and one pply was called as a witness and examined in thif! court. Several passengers are now offered as new witnesses. The affidavit,lidwever, gives no satisfactory excuse for the failure to discover their whereabouts before. It states that, after the trial and decision, (and aftcr a period of ill-health,) libelant's counsel "set about investigating whether there could not be some new evidence discovered ," and "following out the traces obtained, (from the Spanish consul's list and the 'efforts of the detectives before the trial,) he ascertained the whereabouts of additional passengers." How this was done the affidavit does not set forth, but on the argument it was stated that information as to their addresses was obtained from the state department, through the bureau having charge of the issue of passports. It is no ground for reopening the case that this method of investigation did not occur to the detectives or to counsel till the winter succeeding its final disposition. It was available fr'onl the very inception of the case in the district court, and probably if it had been put in practice then would have resulted in discovering the proffered witnesses with much less trouble than when undertakeonearly five years later. . 2. The Crew. It appears that several months before the trial in this court, and while additional testimony was being taken, the libelant was furnished by the claimant with a full list of the crew of the Newport, At thllt time the trial in the diatrict court had a.dvised hirxt which .of these witnesses his adversary did not intend to call. He did not call any;
of thettl hirnsiM, '(otherithll.n those examined in the district court,) nor did he apply fora ccilltirluance of the case to enable him to discover their whereabouts, apparently.relying upon the inferences which he insisted should be drawn from their non-production by his adversary. As to these ' witnesses the affidavit merely states"'That; through' sources information which became known to deponent his recovery td llPalth. in the winter of 1889-90. rleponent got on the tral'k of persons who were members of the crew,of theNllwport, besides tbose examined herein. ",
There is nothing to show that the same methods of investigation as energetically applied ,would not have enabled him to get on the,track of those witnesses before the trial of the case in the circuit court. S. ',A witness from a coaStwise steamer tlwt 'was in mght of the Newport the,rnorningajterthe coUilfion. Information as to the presence of such steamer was obtained from the diary of a passenger. ,Had the passenger been found before, this witness could also have been found. 4. Fmpe:rts a8 to the distance at which shore lights can be Seenja8 to the effects ojcoUiaiJmj and as to the effettofa change oj helm upon the liJlt ojd vessel. Such evidence could of have been obtained on the trials both 'in the district ahd ,circuit \lourts. , 5: "Tht chief officer ojthe'wcho(mer Parker M. Houper, whick, on February ,23, .1884., (the night oj the collision,) ca'l'l'tein contact with a 'I'IUf.8t sticking out olthe water, near the place oj't'lUiWm. No particular explanation is given in the afflrlavit as to the discovery of this witness, but, assuming that it fortuitous, there is' not enough in his testimony to warrant the reopening of the caSe after this lapse of time. The motion is denied.
'DUNCAN 11. THE
(O£rcwtt Court,E. D. Louisiana. Ootober 18, 1800.)
In o,ases lllvolving questions Of faot only depending on evidence, and the credibllit1 of witnesses, the circuit court in admiralty wHlnot disturb the decrees of the district court,. where there 18 no preponderance of e:vidence, and no adevidence olferedon Bllpeal.
ON APFBALo ',.'
.Th<:\ Ipllo",ingare the
. i," ' ,
of the qistrict court , .
to in the
"This can.ecame on, to be beard,l\nd was llrgl!ed by On consid· eI;ation is. satisfied and finds tbat in la w tbe: !!,team-tug, was in fault for tile c'ol!,isiOn" which happened between her and 1i!lelant's lugger on the 2l:lth pf Feb.rtla'r.r,l889. and 'thel'efore the ,libelant is entitled to recover the damages 'sustained by bim in thapreiLlist:S,and amoullting under the proof toonllhundreJ!aud lift! ,