large tunc! from the c!ep08ltory of court to a trnBt e&mpany; · ebange lI)ade by order of court on appllcatlon of the proctors I.n Interest, and for their pecuniary benefit, and Imposing on tbeclerk additional cares, responslbillties, and duties.
In .<!\.dmiralty. On motion by the clerk for extra allowance. Carter & Ledyard, for claimants. Samuel H. Lyman, pro se. '
BROWN, District Judge. The removal of the deposits in these cases from the depository prescribed by law and the regulations, imposed upon the clerk additional cares, responsibilities and duties beyond those previously existing. The change was made by the order of the court,. upon the a£lplication of the parties in interest, and for their pecuniary benefit; it has resulted to their considerable pecuniary advantage. It was made at a time of great in financial matters, and to the threatened prejudice of the registry account in the lawful depository. It could not have been supposed that these additional duties and responsibilities would have been imposed upon the clerk without compensation. As said by Mr. Justice Blatchford, in the case of The Alice Tainter, 14 Blatchf. 225, Fed. Cas. No. 196:
"It is not reasonable that the service should be without compensation. As it Is for the benefit of suitors, it Is reasonable that suitors should pay for It."
The right of the court to make such allowances for extra services beyond what are required by law has been long exercised under the deliberate judgment of Mr. Justice Nelson and Judge Betts, as expressed in the rule of May 28, 1859. See former District Co'Urt Rules, pp. 46, 47, where. it is said, that"Upon the usages and doctrines of courts of the United States, officers called upon to render services in those courts, according to their rules and modes of practice, for which no specific fees or costs are appointed by statute law, wlll be awarded compensation therefor by the courts respectively in which the services are performed, corresponding in amount to that allowed by law In the state, for similar services rendered by state officers, in a like capacity, particularly In chancery procedure. 1 Blatch!. 652; Hathaway v. Roach, 2 Woodb. & M. 63 [Fed. Oas. No. 6,213]."
An extra allowance of one-half of 1 per cent. is in accordance with the rule thus indicated. It is as small as would, I think, be anywhere recognized as appropriate in financial transactions; and it Is, therefore, allowed in this case as a reasonable compensation.
LEWIS et aI. v. TRANT. (OlrcuJt Court of Appeals, First Circuit. February 23, 1894.) No. 66. L ADHIRALTY APPEALS - METHOD OF REVIEW IN OmCUIT COURTS OF APPEAL. The provision of the judiciary act ot February 16, 1875, which took trom the supreme court the power to review the findings of fact on admiralty
' \ IL
I'G. :o.uA..:i,rr,;r48 Fed. 684."foll(lwed\;!
raPP8lllrrpdoes not aptlll' ti)' thetllreuit o'f appe:itl;at 'lea.llt II1'S6 far u,.'thElyirrll4ielvesuch flppea.Is'lfromthe district courts. The Hl1vilah, 1 ,; ,
SAME-PRooFS BELOW REDUCED TO WRITING.
proofs cauees in the, district, court whicll are intedd\id for 'review court ot appeals are in some form reduced to writing, or an equivalgnt therefor is found in the, record, the court will decline to try the facts anew.
S. SAME-AMENDMENTS ON ApPEAL.
",An;leIldInents In PlRHel'll,()f substance on appeals,i:n instance causes can'n'otbe'41lowed In the Clreult"courtS of appeal. TI1e Mabey, 10 Wall. 419, followed: ,j TouqhJng further proof In, the court of appeals In instance causes.
8AM]Jj.-EvIDENOE IN COUR'l' O'FAPPEALS.
the DistristjOourt of the United. States for the Dis..,: brought to recover damages arising ;from. in Boston; harbor April 27, 1892, between the steam,ship and. t4¢ schooner Lizzie Williams. l.'he libel in filed May 81, 1892, by the members of the crew ,o,f Willianis,El-nq one Joseph Welch, also on board the Lizzie Williams at the time of the collision, to, recover for loss, of personal effects ,and for.other damages resulting from the collision; the secotid ,case was filed June 1, 1892, by Otis H. 'Wiley 'others, owners of the Lizzie Williams, to recover loss of vessel a:nA.<>ther damages resulting fr()In the collision. The two caseswel'econsolidated by order of the,(listrict court, and on February the libels with The libelants to the .circuit coUJ.'t 'of appeals, and duly entered then' appeal, March 24, 189?., 7, 1893, appellants filed this motion to introduce additional' evidence, and the same has beenheardr(,)]i briefs and'Ol'al argument FredericD.odge, for appellants. L. S. and F. Cuiip.ingham, for. $,ppellee. Before COLT and PUTNAM, Circuit' Judges. trict
PUTNAM, Circuit ,This ili\ application for leave to 'take and ilie further proof in, this court on an admiralty appeal. Section 110t the act this ,court directed that all provisions of litwinforce, regulating the methods and system of review through appeals or writs of error, shall regulate the methods and system ot appeals and writs of error provided for in that act in respect to this court. The act of February 16, 1875, (18 Stat. 315,) took from the supreme court the review of findings of fact in admiraltyappeals; but it .was necessarily limited to appeals from the circuit courts,as those courts alone directed by that statute to find the facts in such way as would rehder it practicable for the supreme court to dispose of questions of law only. Therefore, it is llot appIi,cable,tothis cou.rt, at least in ,sofaI' as it receives appeals ,in admiralty from the. district courts; aM such has been its uni, fonnpractieafconstructioll, not only with reference to such appeals,
but also with reference to those from circuit courts. The Havilah, 1 C. C. A. 77, 48 Fed. 684Section 30 of the act of September 24, 1789, (1 Stat. 89,) contemplated that, on appeals in admiralty from the district to the circuit courts, the samE! witnesses who were examined in the former might be re-examined iJ;l the latter. It enacted, that the testimony of any witness might be taken down by the clerk of the district court, to be used in the circuit court, unless it should appear that, for the reasons therein stated, the witness could not attend the trial on appeal. This provision of law was omitted in the revision of 11374; but there is nothing in its omission to indicate any change of legislative intention in the particular referred to. It was probablyre; garded as rendered unnecessary by Rev. St. § 862, although the com:' missioners are silent on this point. See Blease v. Garlington,' 92 U. S.l, 6. The supreme court has promulgated anew, since the Revised Statutes, rules of practicein admiralty Nos: 49 and 50, contain·, ing the sallle recognition as the act of 1789 of the right to take proofs de novo in admiralty appeals in the circuit court. The counsel have citedmariy authorities touching the proposition that formerly an appeal was to be regarded in the circuit court asa proceeding de novo, in which new proofs might be taken ad libitum, without reference to the proceedings in the court appealed from, unless so far as the proofs there had been preserved and to the appellate tribunal. We think the proposition is established in its general aspects, not only by the statute of 1789, already referred to, but otherwise. This result necessarily flows from the fact that there has never been any statute, nor any rule of the supreme oourt, providing .for the preservation of the proofs taken viva voce in the district court, except the statute of 1789, and in most circuits there has been no rule of either the district or circuit C<'Ul"ts for that purpose. Therefore, notwithstanding some apparent expressions of Judge Story otherwise, through a recognition of the rules of the civil law, we accept for this, in its fullest sense, the language in The Lucille, 19 Wall. 73, and repeated in The Charles Morgan, 115 U. So 69, 75, 5 Sup. Ct. 1172: "A new trial, completely and entirely new, with other testimony and other plead. ings if necessary; or if asked for." If The Saunders, 23 Fed. 303, and The Stonington and The Wm. H. Payne, 25 Fed. 621, hold otherwise, it must be attributed to the fact that in the southern district of New York there has existed, since 1838, a system of rules providing carefully for the preservation of proofs in the district court, and touching their use on appeal, and to the further consequent fact that under these rules the practice, in that districtr of preserving the proof,s in the court of first instance, is so uniform that the possi· bility of their not being preserved would not be l,ikely to impress itself on the court. In The Stonington and The Wm. H. Payne, Mr. Justice Blatchford merely followed The Saunders, without approvfng it. He necessarily disapproved it in the following,· which is found· in Irvine v. The Hesper, 122 U. S. 256, 266,7 Sup. Ot. 1171:
pllillpuwts DQt having the circuit cow.-t,lt that they' !t'lC! 'lliitilb tor at least"the amolitlt awarded by thedl$ttlct court, and that the circuit court COuld" Dot that amount, but, had jurisdiction, appeaI, only to increase it. It'is well settled, however, that on an. eaJ, 1lliralty" fro,m, ,the tr,ict court ,to th,e, d,rc,u,it court vacates altogethm-, i ' of and that the case, is tried de novo in the'cft, , .(tburl.Vea1:ch(v. U. 8",5 Cranch, 281; Anon',,1 Gall: 22, Fed. Cas. NO. 1m; Roarer; 1 :Blatchf;l, Fed. Cas. No. 11,876; The Saratoga. v. Four,Hundred and Thirty-Eight Bales of Cotton,l WOOds, 75, Fed. Cas. No. 19 WalL'J:3r MorgaJ\, 115U. S. 69, 75, 5 SUp. Ct., do lJ,ot the fact that the claimants did not decree ot the district court alters the rule. ' When the libelants appeal9drtbey did so in view of the rule; and took the risk of the rlc'sult ease de DOVO. The whole case was ,oPened lJ;r thl'lir appeal, of, a trial, as would have :been ifoo1;ll. parties had appp-aled, 01' if the appeal bad been only by the claimantljl." , ,
that,' may be the rule in prize causes,ltherlUecessities of the position, while appeals were by law tllkenfrom thedJstrict to: the circuit courts, rendered inapplicable, in the latter courts, the "peculiar principles of the civil law touching new pooofsJon appea1.:Neither do we find any referenceto the:ch'U laW-in the.JaterrElidjudications ofthe supreme court, concerning new proofs; on appeal.. to that triwnal in admiralty causes :0n, the instance: side. No 'conclusions w.ere drawn from it in The Mabey, when firet:reportedJnl0 Wall. 419. , So, the practice of the supreme court in ,refusing substantial amendments in that court in ,instance cav-selt in adttliralt3", as further stated in The Mabey, 420,) noUn harmonydwith the civil law, which. was liberal in that respeot on appeal. The Marianna Flora, 11 Wheat..,ll 38. The, reluctance O'f the supreme court in regard to each particular no doubt:gl'ew out'O'! the contemplation of the practical difficulties which would otherwhle surrouuditand its litigants, though in the second report of The ,Mabey, 13 Wall, 738, it was further said that, if par1:ies, were induced to keep back their testimony in the subordinate courts, the effect would be to convert the supreme court into a court of original jurisdiction. Thetefore, the substantial questions which we have ndw to consider are whether that part of the act establishing this court:Which directs that 'certain proviaions of law regulating appeals shall apply to appeals to it, adopts, tor the purposes now under consideration, the methods and system relating to appeals to the supreme court, or those relating to appeals to the cil'cuit courts, and; if the former, whether we should, for conYenience, adopt rule 120t the supreme court, touching further proof, or, what, for convenience/we should promulgate in lieu thereof. ,As the appeals which we have to. consider Come in large part from the· circuit courts, it is to be presumed that oui' proceedings touching them are, eo practicable, regulated by the provisions of law concerning appealsf1'Om that court, and not those to it. Rule 8 of this court, framed with the approval of the justices of the supreme court, confQJ:mipgour practice to that of the latter court, so far as in that direction; and we have"no dQ1Jbt ontbe point. Neither have we any doubt that the closing paragI'APb prohibiting therecep-
tlOl1 of new evidence in the supremecoul't on appeal, except in ad-
miralty a.nd prize causes, and the implication which it contains, ap-
ply to this court. The act of February 16, 1875, already referred to, rendered that paragraph inapplicable to appeals from the circuit courts to the supreme court, but left it in force with that exception, and did not repeal it. Neither have we any doubt that the act 01 March 3, 1803, (2 Stat. 244,) now Rev. St. § 698, and elsewhere, applies to appeals to this court. In 1833, Judge Story held in The Boston, 1 Sumn. 328, 332,Fed. Cas. No. 1,673, that this statute required proofs in the circuit court, in cases intended for appeal, to be reduced to writing; and accordingly, June 8, 1846, several years before the supreme court promulgated its admiralty rules 49 and 50 on the same topic, he directed as follows: "In all causes in ad· miralty the testimony shall be in writing, unless, for special cause shown,. the court shall allow witnesses to be examined orally upon the' stand." This is now known in the rules of the circuit court for this circuit as "Additional Rule 10." Conk. Adm. Pro (2d. Ed.) p. 422, and sequence, criticises Judge Story in this particular; but the criticism is practically limited to his requirement that the. new proofs should be by depositions, as on page 425 the work cites without disapproval-indeed, with qualified approval-a rule of long standing, in fact since 1838, in the second circuit, requiring proofs in the circuit court to be reduced to writing from the notes of the trial. Moreover, it appears by the Addenda to the treatise under consideration (page 608) that the learned author omitted to consider in the proper place the supreme court rules in admiralty Nos. 49 and 50. As these were adopted in 1851, they must have found their support in the act of 1803, because so much of the act of 1789 as required the examination of witnesses in open court not expressly repealed until the revision of 1874, §862 Blease V. Garlington, 92 U. S. 1, 6. We are therefore satisfied that the act of March 3, 1803, in its revised form, (Rev. St. § 698,) with the practical construction put on it by Judge Story and by the supreme court rules in admiralty Nos. 49 and 50, so far as it required that the proofs in the court of the first instance be in some way reduced to writing in cases intended for a review of the facts on appeal, applies to appeals to this court. We have, however, no power to prescribe rules for the district courts as Rev. St. §§ 862, 913. vest this in the supreme court, and it in no part been transferred to us. We will notice that matter in the rules which we intend to promulgate with this opinion; but in any case in which all the proofs are not reduced to writing in the district court, and no equivalent is found in the record, we have no power except to decline to try the facts anew. Moreover, the rules to be promulgated herewith must not be construed as permittinO' taking anew oral proofs taken in the district court, and not served in the record. We agree fully with the court of appeals in the second circuit that the power given by the second section of the act creating this court, to establish rules and regulations for the conduct of its busi. ness, authorizes us to promulgate rules covering this topic, to stand
'it,h,e 12"tO'nC,hing: further <l9W't; The hiswpr of this rule;and,of the t.e, supreme. court :out' of' which it arose, 'and also the l;1istqr,y qf:itsl1Pplication .with reference to the discretion which that court lJ,St\9 in regarQ. to the of further proofs in show tblitt.the whole Sttbject-matter is flexible, and pecnliar ,necessities of the appellate tribunal ap.d of; they cllange from time to time. The rule was no,t 2 Wbeat. vii. Prior thereto, witnesses were viva voce in the, supreme court. U. S. v. The Umoni 4: 216; The.l;lanlUe1,3 Wheat. 77. The generc1l p'l'incipler:equiring. sO,me satisfaetory ,to the court"fol' not taking, ;W. the proofs asked to be taken in the' supreme court, i stated'in The Mabey, 10 Wall. 419,420. It is by Judge Story'iD/,Cdffin v'.,Jenkins j ' 3 StOl'Y, theeftect that the appellate tribunal ought to be "very cautious in admitting, any new, matters." The ammUltot:\n}siness inthiIJ court does:pot require that in the rules to onthia topic we should do more: than protect the and guard li1dgants from delays in the trial of ,I. . ' : .' ]'oUowing,The 10' Wall. 419, amendments in matters of on ,appeals in instance causes cannot be granted in this court, andwitb'reference to that topio we must follow the pm,ctice IaiddQwn dn that: case. Page 420. In consideration that thepmctice touching the subject-matter of this opinion has not been settled heretofore, we have not particularly scrutinized .the circumstances of this application. The Mabey, 13 Wall. ,738,741. The t;J1Qi;ion to introduceadditionaJ proofs, filed December 7, 1893, is allowed.
X!ilr9 HUMBOLDT LUMBER MANUF'RS' ASS'N. WistrlctOourt, .N. D.· California. February 21" 1894.) No. 9,162.
Code..,CI'\l\Proc. ,Cal. § 377, provides that, where death of a person is caused by tlle wrongful act of anot:tJ,er, the hell's. or personal representatl"les ;ot, the deceased may maintain an action tor damages against the, $0 causing the death. The: con!Jtitutlon and Political Code of t4e western bOundaryot the state, andot its counties, on . the pacific' 9cean,' thi'ee miles west ot the shore. line. Helll, that the tel'. ritorif!.l' . .of the .· state extellds ,OVer this t:tJ,ree-mile belt. and sucbsectloii'.87i7: 'gives a right ot action 'tor'wrongfuI death occurring on . the hig:tJ, sl!lij'l two miles from the shorel . .
The death of a person was caused by the capsIzing of a schooner two miles. from the shore Une of Humboldt ,county, Cal. The crew were drowned, and the personal representatives of some of them brought actions in the state court against the owners of the tug which had the schooner.in tow at the time of the accident that the admiralty court for the px:oper district, has juriSdiction to stay such actions, to de-
LtA1ULITY.... DEATH':sV WRON?,FUL, ACT.