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sires instruction, or the Supreme Court may itself require by certiorari or otherwise such a case to be certified to it for review and determination. From the final sentences and decrees in prize cases, irrespective of the amount involved, appeals are taken immediately to the Supreme Court of the United States.3

§ 424. Appeals, when and how taken.- Appeals must be taken within six months after the entry of the final decree.' But the rules of the District Courts fix the time in which, if the appellant desires to stay execution, an appeal must be taken. An appeal is usually taken by the service of a brief notice in writing on the clerk of the District Court and the proctor for the adverse party of the intention of the appellant to appeal.

§ 425. Practice on appeals.-The practice on appeals in admiralty is now analogous to the former practice on appeal from the Circuit Courts to the Supreme Court, rather than from the District to the Circuit Courts. The rules of the Circuit Courts of Appeals as to supersedeas and cost bonds, citations, returns, docketing cases, dismissal of appeals, printing records and briefs, motions, arguments, rehearings, costs, and mandates apply as well to admiralty as to equity.'

§ 426. Petition of appeal. In some respects an appeal in admiralty is a new trial. The cause is tried before the appellate court de novo.1 The pleadings may be amended, and new proofs introduced, or a new decision may be sought on the

226 St. at L. 828, § 6. The writ is frequently issued in cases of admiralty.

may be taken by filing in the clerk's office and serving on the proctor of the adverse part a simple notice of

326 St. at L. 828, § 5; The Paquete appeal, without any assignment of Habana, 175 U. S. 677.

errors or allowance by any judge;

§ 424. 1 Act of March 3, 1891, ch. security in the sum of two hundred 517, § 11 (26 St. at L. 829).

? In the New York and New Jersey districts the appellant has ten days from the entry of the final decree in which to appeal; in Connecticut, twelve.

§ 425. The admiralty rules of the Court of Appeals for the Second Circuit, which are published in the Appendix, infra, provide that an appeal

and fifty dollars for costs to be given within ten days after filing the notice (I, II). They allow the appellant to appeal from a part only of the decree (III). They also regulate the contents and form of the apos tles or transcript, and the briefs (IV, XV).

426. Irvine v. The Hesper, 122 U. S. 256.

pleadings and proofs which were before the District Court.2 According to the old practice, within ten days from the taking of the appeal the appellant must file with the clerk of the District Court, and serve upon the proctor for the appellee, a petition of appeal,3 which is a summary statement of the proceedings in the cause, showing when and for what the libel was filed, when the answer was filed, and what relief was prayed for in it, when and before whom the cause was tried, what the decree of the District Court was, when it was entered, and when the appeal therefrom was taken. It must state whether the appellant intends to make new allegations or proofs in the Circuit Court of Appeals, to pray different relief, or to seek a new decision on the facts. The appellant cannot amend his pleadings or take new proofs in the appellate court unless he has stated his intention to do so in his petition of appeal.

§ 427. Bond on appeal.- Unless the appellant give security for damages and costs, the decree of the District Court may be enforced at the expiration of the time limited by the rules, as if there had been no appeal. The bond runs to the appellee, and should be executed by the appellant and two sureties; but it is not necessary that all the appellants should sign the bond.' The obligation of the bond is that the appellant will prosecute his appeal to effect, and answer all damages and costs that may be decreed against him by the appellate court, if he fail to make his appeal good. If a stay of execution is not sought, the bond may be given for costs only. So, if the security given in the District Court is by its terms enforceable in the

2 The Lucille, 19 Wall. 73.

3 The rules of the Second Circuit adopted July 1, 1892, do away with the necessity for a petition of appeal and provide that the apostles shall contain a summary statement of the proceedings in the cause.

4 Phenix Ins. Co. v. Liverpool & G. W. S. S. Co., 22 Blatchf. 372; s. c. sub nom. The Montana, 22 Fed. R. 715, 730. No severance is needed to allow the claimant to appeal alone without his sureties. The Glide (C. C. A.), 72 Fed. R. 200. But

part of the claimants for damages who have intervened in a proceeding cannot ordinarily maintain a separate appeal from a decree limiting liability without procuring a severance from the others. Short v. The Columbia (C. C. A.), 67 Fed. R. 942. See infra, chapter on Writs of Error and Appeals.

§ 427. Brockett v. Brockett, 2 How. 238. In the Second Circuit the amount of the bond is $250. (C. C. A. Rule II, 2d Ct.).

appellate court, an additional bond for the whole claim will not be exacted. Security will be required only in an amount sufficient to pay the costs of the suit and damages for delay, and costs and interest on the appeal.2

§ 428. Assignment of errors.-The general rules of the Circuit Courts of Appeal provide that the appellant shall file an assignment of the errors which he intends to urge on appeal, and that errors not so assigned will be disregarded. Rule 11 is broad enough in its terms to include admiralty causes. It is therefore necessary for the appellant in admiralty to file a formal assignment of errors.1

§ 429. Bill of exceptions - Record on appeal.- A bill of exceptions is not required on an appeal in admiralty from the District Court. The record is made as provided in Rule 52 of the Rules of the Supreme Court in Admiralty. It should contain the style of the court, the names of the parties, both original and substituted, the process, all bail and stipulations, and if a sale has been made, the orders, warrants, and reports relating thereto, the pleadings, testimony, and exhibits, any order or report to which exception is taken, the final decree, the notice and petition of appeal, citation, supersedeas, assignment of errors, and the opinion of the district judge. The clerk will,

2 C. C. A. Rule 13; The Brantford taken place; the several dates when City, 32 Fed. R. 324.

§ 428. In the Second Circuit the rules adopted May 20, 1892, do away with the necessity of an assignment of errors. Their validity in this respect has not been decided by the Supreme Court.

429. Admiralty Rules IV and V of the Second Circuit are as follows: "IV. Section 1. The apostles, on an appeal to this court, shall, in cases where a general notice of appeal is served, consist of the following:

"(1) A caption exhibiting the proper style of the court and the title of the cause, and a statement showing the time of the commencement of the suit; the names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has

the respective pleadings were filed; whether or not the defendant was arrested, or bail taken, or property attached or arrested, and if so, an account of the proceedings thereunder; the time when the trial was had, and the name of the judge hearing the same; whether or not any question was referred to a commissioner or commissioners, and, if so, the result of the proceedings and report thereon; the date of the entry of the interlocutory and final decrees; and the date when the notice of appeal was filed.

"(2) All the pleadings, with the exhibits annexed thereto.

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however, omit any of the pleadings, testimony, or exhibits which the parties agree by written stipulation may be omitted. § 430. New proofs on appeal.- Although an appeal in admiralty opens the decree of the lower court, and gives the parties another trial, the proofs adduced in the District Court are invariably used in the appellate court. If new proofs are taken, the witnesses are examined upon notice before a commissioner or notary public,' and their depositions are offered in evidence upon the hearing of the appeal. A party is not

appellant may desire to have re viewed on the appeal.

“(5) Any report of the commissioner or commissioners, to which exception may have been taken, with the order or orders of the court respecting the same, and the exceptions to the report, and so much of the testimony taken in the proceed ing as may be necessary to a review of the exceptions.

"(6) All opinions of the court, whether upon interlocutory questions or finally deciding the cause.

(7) The final decree, and the no

tice of appeal. And

"(8) The assignments of error. "Sec. 2. All other papers shall be omitted unless otherwise ordered by the judge who heard the cause.

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Sec. 3. Where the appellant shall appeal specially, and seek only to review one or more questions involved in the cause, the apostles may, by stipulation between the proctors for the respective parties, contain only such papers and proceedings and evidence as are necessary to review the questions raised by the appeal."

“V. The appellants shall, within thirty days after giving notice of appeal, procure to be filed in this court the apostles certified by the clerk of the district court, or, in case of a special appeal, the stipulated record, with the certification by the said clerk of all the papers contained therein on file in his office."

It is the safer practice to prepare

the record so that it will show which witnesses were examined in the presence of the district judge, and which were not. The Gypsum Prince (C. C. A.), 67 Fed. R. 612.

§ 430.1 Adm. Rule 49. This rule is by its terms confined to new proofs "taken in a Circuit Court," and is therefore strictly not applicable to proofs taken in a Circuit Court of Appeals. The rules of the Second Circuit Court of Appeals provide that "upon sufficient cause shown, this court, or any judge thereof, may allow either appellant or appellee to make new allegations, or pray different relief, or interpose a new defense, or take new proofs. Application for such leave must be made within fifteen days after the filing of the apostles, and upon at least four days' notice to the adverse party" (VII). “If leave be granted to make new allegations, pray different relief, or interpose a new defense, the moving party shall, within ten days thereafter, serve such new pleading, duly verified, on the adverse party, who shall, if such pleading be a libel, within twenty days answer on oath. If leave be given to take new testimony, the same may be taken and filed within thirty days after the entry of the order granting such leave, and the adverse party may take and file counter testimony within twenty days after such filing” (VIII).

2

permitted deliberately to withhold evidence in the District Court, and after having failed there to offer it in the appellate court. Objections to the taking or admission of new proofs must be made promptly, and if the appellee has cause to show why new proofs should not be offered, he should give notice thereof to the Court of Appeals at the opening of the term, on affidavits stating the cause intended to be shown. The act of February 16, 1875 (18 St. at L., p. 315, ch. 77, § 3), which required the Circuit Court to make findings of fact and conclusions of law, was designed to relieve the Supreme Court from the necessity of deciding questions of fact in admiralty causes. It does not apply to appeals to the Circuit Court of Appeals.' § 431. Practice upon appeals to the Supreme Court.— The practice upon appeals to the Supreme Court in Admiralty is the same as that upon other appeals to that tribunal, except that in prize cases testimony might perhaps be taken upon the appeal.1

§ 432. Prohibition.- The Supreme Court has power to issue writs of prohibition to the District Courts when proceeding as courts of admiralty. The writ will be issued only where it clearly appears that the District Court is about to assume jurisdiction of a matter beyond its legal cognizance. It cannot be used as a substitute for other remedies, such as certiorari or appeal. Whether the writ should issue or not depends not upon facts stated dehors the record, but upon those stated in the record upon which the District Court is called to act. Mere matters of defense, whether going to oust the jurisdiction of the court or to establish the want of merits in the libelant's

? The Saunders, 23 Fed. R. 303; The Stonington, 25 Fed. R. 621. Cf. In re Hawkins, 147 U. S. 486; supra, § 363. The Stonington, 25 Fed. R. 621. The Havilah (C. C. A.), 48 Fed. R. 684. It has been held that on appeal from a District to a Circuit Court defective process cannot be cured by amendment. The City of Lincoln, 19 Fed. R. 460.

§ 362. Adm. Rule 12 of the Circuit Court of Appeals for the Second Circuit provides that "a writ of inhibition may be awarded by this court on motion of the appellant to stay proceedings in the court below, when circumstances require."

2Smith v. Whitney, 116 U. S. 167,

176.

3 Ex parte Gordon, 104 U. S. 515;

$431. For the practice see the Ex parte Pennsylvania, 109 U. S. 174; Smith v. Whitney, 116 U. S. 167.

final chapter of this book.

$432. U. S. R. S., § 688; supra,

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