assailable so far as they depend on conflicting testimony, or upon the credibility of witnesses; though not absolutely conclusive, if there is no testimony to support them. The Elton, 83 Fed. R. 519-521, 31 C. C. A. 496.

Where there is a conflict of testimony upon a question of fact, the court will adopt the conclusion of the commissioner unless there is a palpable preponderance of evidence against it. Holmes v. Dodge, Abb. Ad. 60; Fed. Cases, 6,637.

Where it appears from the commissioner's report that the testimony was in direct conflict and that the commissioner gave credit to one witness and discredited the opposing witness, it not appearing from collateral facts or circumstances that the decision of fact made by the commissioner should be changed, exceptions to his report should be disallowed. Ib.

The report of a commissioner should stand in respect to exceptions like exceptions to a jury trial, where they should be taken at a time and under circumstances where error can be easily corrected if urged and if not urged will be treated as waived. The Eliza Lines, 114 Fed. R. 307– 313, 52 C. C. A. 195.

Rule 44 contemplates that proceedings before commissioners shall be under rules which govern masters in chancery in equity proceedings. Equity Rule 83 requires that parties file exceptions to the report of a master within a given time, and if none are presented within that time exceptions are waived and the report stands confirmed. Ib. 313.

By Rule 44 like powers are conferred upon commissioners acting upon references in admiralty proceedings as are usually exercised by masters in chancery in the equity courts, and their conclusions are given the same force and effect, and will not be disturbed unless it is apparent that there was a clear mistake in the process by which the conclusions were reached. The Cayuga, 59 Fed. R. 483–488, 8 C. C. A. 188.

The powers conferred upon a commissioner in admiralty causes are analogous to those of masters in chancery, and his findings upon questions of fact depending upon conflicting testimony or upon the credibility of witnesses will not be disturbed unless clearly erroneous. La Bourgogne, 144 Fed. R. 781-783, 75 C. C. A. 647.

The rule that the commissioner's findings upon questions of fact should not be disturbed unless plainly wrong, has little application where but little of the important evidence is taken by the commissioner. Sovereign of the Seas, 139 Fed. R. 812-815.

Findings of fact by a commissioner should be made in distinct paragraphs successively numbered. Exceptions thereto and briefs referring

thereto should refer to such paragraphs by numbers. The Ataska, 117 Fed. R. 885-893.

In an appellate court the decision of the trial court on questions of fact where the judge saw and heard the witnesses testify will have controlling weight, but an appellate court will more readily examine the evidence and reach its own conclusions thereon where the same is taken by an examiner. The Sapho, 94 Fed. R. 545–547, 36 C. C. A. 395.

Where the judge saw none of the witnesses and the controversy involves a sharp conflict of evidence the appellate court will examine the entire record. Lazarus v. Barber, 136 Fed. R. 534-535, 69 C. C. A. 310.

In admiralty causes all the testimony should be included. The District Court should admit all the testimony offered because the ultimate judgment must be made by the appellate court, which may have a different opinion in regard to the competency and materiality of testimony offered in the District Court; where, therefore, testimony tendered at the hearing in open court is objected to it should all be received subject to the objection, unless it is so utterly irrelevant and immaterial that there can be no possibility of any doubt about it. The power of the court to punish with costs useless testimony will ordinarily be a sufficient deterrent to such practice. Minnesota S. S. Co. v. Lehigh Valley Co., 129 Fed. R. 22–30, 63 C. C. A. 672.

Where in an admiralty cause the testimony is heard by the court it should be taken down in writing, so the appellate court may pass upon both the law and facts. If there is no official stenographer, counsel should arrange therefor. Neilson v. Coal, etc., Co., 122 Fed. R. 617-618, 60 C. C. A. 175.

The court has authority to direct the employment of a stenographer in the taking of testimony, and make the expense part of the taxed costs, where one of the parties refuses to consent to such employment. The practice is to have the parties stipulate for the employment of a stenographer where necessary and the court has failed to make a general or special order. Rogers v. Brown, 136 Fed. R. 813-814.

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RULE XLV

All appeals from the District to the Circuit Court must Appeals, when to be made while the court is sitting, or within such other period as shall be designated by the District Court by its general rules, or by an order specially made in the particular suit; or in case no

such rule or order be made, then within thirty days from the rendering of the decree.

Decisions

Held, in the absence of any statute regulating the time for taking appeals, that under the Judiciary Act of 1789 provision was made for appeals from the Circuit Court to the Supreme Court, but no provision made for appeals from the District Courts to the Circuit Courts, except to the next Circuit Court; thus requiring appeals from the District Courts to be made only at the time of the decree or before the adjournment of the court or the term. An appeal three days after the court adjourned sine die not allowed. Norton v. Rich, 3 Mason, 443; Fed. Cases, 10,352.

There is no statutory provision to regulate either the mode of appeal from the District to the Circuit Court or the security to be given in order to stay execution on such appeal in admiralty causes. Prior to the act creating the Circuit Court of Appeals, all the statutory provisions upon these points were confined to appeals to the Supreme Court. The Brantford City, 32 Fed. R. 324–325.

In prize cases, Held, that an appeal to the Supreme Court from the District Court might be taken within thirty days after the final decree, whenever the purposes of justice required it. Neustra Señora de Regla, 17 Wall. 29-31, 21 L. ed. 596.

Where during the term a petition is filed to have the final decree opened and the petition is referred to a master, the time limited to take an appeal does not run until the court has acted upon the petition. Brockett v. Brockett, 2 How. 238-241, 11 L. ed. 251.

It is not necessary that all the defendants should join in the appeal bond, although all should join in the appeal. Ib. 240.

Where a decree is entered as of a prior date the rights of the parties in respect to appeal date from the actual entry and filing of the final decree. Rubber Company v. Goodyear, 6 Wall. 153–156, 18 L. ed. 762.

In garnishment proceedings in admiralty the first decree ascertaining the liability of the garnishees is interlocutory, and only after a final decree with an award of execution against the funds in their hands, can the garnishees take an appeal. Cushing v. Laird, 107 U. S. 69–76, 27 L. ed. 391.

The requirement of a District Court rule that the appeal be in writing is mere procedure, but if the District Court allow an appeal without writing, it does not affect the jurisdiction of the appellate court. The S. S. Osborne, 105 U. S. 447-450, 26 L. ed. 1065.

Cross-appeals must be prosecuted as other appeals or they will be dismissed. Ib. 451.

If the cross-libel is dismissed, a review of the decree of dismissal cannot be had until the original cause is determined; an order dismissing a cross-libel for want of jurisdiction is not a final decree within the rule that appeals lie only from final decrees. Bowker v. United States, 186 U.S. 135-142, 46 L. ed. 1090.

Appellants are not obligated to pay the sum awarded against them on appeal until the time when execution can issue on the decree, which is not until the expiration of ten days after the rendering of the decree, where the final decree provides for the award of execution, unless an appeal be taken within ten days after the entry of the decree. The New Orleans, 17 Blatchf. 216; Fed. Cases, 10,181.

Upon an appeal from the District to the Circuit Court, Held, that an appeal in admiralty has the effect to supersede and vacate the decree from which it is taken and that an entirely new trial with other testimony and other pleadings if necessary or asked for in the appellate court is contemplated, and that the decree made in the Circuit Court is to be enforced by that court where the record remains, and the District Court has nothing further to do with the cause. The Lucille, 19 Wall. 73-74, 22 L. ed. 64.

An appellant who recovered judgment below cannot take a nonsuit in the appellate court after the case is entered if the defendant objects. Where the appellant in an admiralty suit declines to prosecute his suit further, the court should give judgment upon the merits. Folger v. The Robert Shaw, 2 Woodb. & M. 531; Fed. Cases, 4,899.

A bill of exceptions Held not necessary to give the Supreme Court jurisdiction of an appeal from the Circuit Court, in admiralty, under the provisions of the Act of Feb. 16, 1875, 18 Stat. L. 315. The S. C. Tryon, 105 U.S. 267-270.

The findings which the statute requires must be stated by the court and become part of the record, and errors of law arising on them need not be presented by exceptions. Ib.270.

Even after appeal a new allegation may be filed where cause is shown, and the appellate court will remand the cause to the Circuit Court to allow it to be done. The Adelane, 9 Cranch, 244, 3 L. ed. 720.

After an appeal from the District to the Circuit Court was taken, Held a motion to amend the pleadings so as to include a claim for damages growing out of the original cause of action, but rejected in the District Court because not specified in the pleadings, should be allowed. The Charles Morgan, 115 U. S. 69–75, 29 L. ed. 316.

The case of the North Carolina, 15 Pet. 40, holding that a libel could not be amended after an appeal so as to bring in a new claim for damages, was decided before the present admiralty rules were adopted. Ib. 76.

Upon an application in the Supreme Court for leave to amend the pleadings and introduce new testimony, that court refused to determine whether, since the Act of Feb. 16, 1875, new testimony could be taken in the Supreme Court after an appeal in admiralty, or amendments to the pleading be allowed under any circumstances. The Merchants' Ins. Co. v. Allen, 121 U. S. 67–73, 30 L. ed. 858.

The findings of fact in an admiralty suit have the same effect on appeal under the Act of Feb. 16, 1875, as a special verdict in an action at law. The Maggie J. Smith, 123 U. S. 349–352,31 L. ed. 175.

Construing the Act of Feb. 16, 1875, it is settled: (1) That the facts found by the court below are conclusive; that the bill of exceptions cannot be used to bring up the evidence for a review of these findings; that the only rulings upon which the Supreme Court are authorized to pass are such as might have been presented by a bill of exceptions prepared as in actions at law, and that the findings have practically the same effect as the special verdict of the jury; (2) that it is only the ultimate facts which the court is bound to find and the Supreme Court will not take notice of a refusal to find the mere incidental facts, which amount only to evidence on which the ultimate fact was obtained; (3) if the court below neglects or refuses to make a finding as to the existence of the material fact established by uncontradicted evidence, or finds such a fact when not supported by any evidence, and an exception be taken, the question may be brought up for review on that particular. The City of New York, 147 U. S. 72-76, 37 L. ed. 84.

Under the Act of Feb. 16, 1875, the Circuit Court is bound to pass upon and find every material and ultimate fact necessary to a proper determination of the question of law, and in case of refusal to make such finding an exception may be taken thereto which will be considered upon appeal. The E. A. Packer, 140 U. S. 360-364, 35 L. ed. 453.

Where, in the opinion of the appellate court, the findings of the trial court are ambiguous, contradictory or incomplete or fail to establish a satisfactory basis for a decision, they will not be followed. Ib. 364.

The Supreme Court has jurisdiction of appeals from all final sentences and decrees in prize causes without regard of the amount in suit and without any certificate of the district judge as to the importance of the particular case. The Paquette Habana, 175 U. S. 677–686, 44 L. ed. 320.

By the Act of Mar. 3, 1891, establishing the Circuit Court of Appeals,