were not of course, but only upon a formal application requiring a reasonable excuse for not taking the evidence in the court below. Ib. 420.

Where proper facts were set up by affidavit upon motion made, the commission was issued under Rule 12 of the Supreme Court to take testimony in a cause pending in that court on appeal, where some of the witnesses were alleged to have received a promise for the payment of a sum of money in the event the case was decided in favor of one of the parties. The Western Metropolis, 12 Wall. 389, 20 L. ed. 394.

Where it is claimed upon a motion for a rehearing that an issue upon a particular question was not raised in the pleadings, and that if such issue had been raised, the claimant had a good defense thereto, Held, that although the claimant had omitted to make showing of his defense in the court below, it was still open to him to bring this testimony to the attention of the appellate court under the admiralty rules relating to new testimony in that court. Kenny v. Blake, 125 Fed. R. 672-675, 60 C. C. A. 362.

down may be used on

appeal.

RULE L

When oral evidence shall be taken down by the clerk of When evidence taken the District Court, pursuant to the above-mentioned section of the Act of Congress, and shall be transmitted to the Circuit Court, the same may be used in evidence on the appeal, saving to each party the right to take the depositions of the same witnesses, or either of them, if he should so elect.

Decisions

Rev. Stats., sec. 698 (U. S. Comp. Stats. 1901, p. 568), and admiralty Rules 49 and 50 require that proofs in the court of first instance be in some way reduced to writing in cases intended for review of the facts on appeal in the Circuit Court of Appeals. The Philadelphian, 60 Fed. R. 423-427, 9 C. C. A. 54.

The Act of Feb. 16, 1875, which takes from the Supreme Court the review of findings of fact in admiralty appeals is not applicable to the Circuit Court of Appeals; at least in so far as it receives appeals in admiralty from the District Court. Ib.

-New matter in an

RULE LI

When the defendant, in his answer, alleges new facts, Replication not allowed. these shall be considered as denied by swer considered as de- the libellant, and no replication, general or special, shall be filed, unless allowed or directed by the court on proper cause shown. But within

nied.

such time after the answer is filed as shall be fixed by the District Court, either by general rule or by special order, the libellant may amend his libel so Libel may be amended, as to confess and avoid, or explain how and when.

or add to, the new matters set forth in the answer; and within such time as may be fixed, in like manner, the defendant shall answer such amendments.

Decisions

Under Rule 51 evidence as to matters put in issue by either the libel or answer is properly received. Moore v. The Robilant, 42 Fed. R. 162-166.

Under Rule 51 where new facts are alleged by the defendant the libellant is authorized to amend his libel so as to confess and avoid, or explain, or add to new matter set forth in the answer, but he is not required to do so. The Mexican Prince, 70 Fed. R. 246–247.

Under the practice prior to the adoption of Rule 51, where the libellant merely intended to deny the truth of the allegations in the answer, a replication was not necessary, but when the allegations in the answer were admitted and intended to be avoided by new facts, the matter in avoidance was required to be put upon the record either by a supplemental libel or by replication. Gladding v. Constant, 1 Spr. 73; Fed. Cases, 5,468.

RULE LII

(1) The clerks of the District Courts shall make up the records to be transmitted to the Circuit Contents of records from Courts on appeals, so that the same

shall contain the following:

(i) The style of the court.

District Courts.

(ii) The names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has taken place.

(iii) If bail was taken, or property was attached or arrested, the process of the arrest or attachment and the service thereof; all bail and stipulations; and, if any sale has been made, the orders, warrants, and reports relating thereto.

(iv) The libel, with exhibits annexed thereto.

(v) The pleadings of the defendant, with the exhibits annexed thereto.

(vi) The testimony on the part of the libellant, and any exhibits not annexed to the libel.

(vii) The testimony on the part of the defendant, and any exhibits not annexed to his pleadings.

(viii) Any order of the court to which exception was made.

(ix) Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report was not excepted to, only the fact that a reference was made, and so much of the report as shows what results were arrived at by the assessor, are to be stated.

(x) The final decree.

(xi) The prayer for an appeal, and the action of the District Court thereon; and no reasons of appeal shall be filed or inserted in the transcript.

What to omit.

The following shall be omitted:

(i) The continuances.

(ii) All motions, rules, and orders not excepted to which are merely preparatory for trial.

(iii) The commissions to take depositions, notices therefor, their captions, and certificates of their being sworn to, unless some exception to a deposition in the District Court was founded on some one or more of these; in which case, so much of either of them as may be involved in the exception shall be set out. In all other cases it shall be sufficient to give the name of the witness and to copy the interrogatories and answers, and to state the name of the commissioner, and the place where and the date when the deposition was sworn to; and, in copying all depositions taken on interrogatories, the answer shall be inserted immediately following the question.

dexed and certified.

(2) The clerk of the District Court shall page the copy of Record to be paged, in- the record thus made up, and shall make an index thereto, and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transcript of the record of the

District Court in the cause named at the beginning of the copy made up pursuant to this rule; and no other certificate of the record shall be needful or inserted.

on stipula

(3) Hereafter, in making up the record to be transmitted to the Circuit Court on appeal, the clerk Omissions of the District Court shall omit there- tion. from any of the pleading, testimony, or exhibits which the parties by their proctors shall by written stipulation agree may be omitted; and such stipulation shall be certified up with the record.

Decisions

It is desirable upon appeals in admiralty that the record be so prepared as to show which witnesses were examined in the presence of the district judge and which were not. The Egyptian Prince, 67 Fed. R. 612-615, 14 C. C. A. 573.

Where documentary evidence has been omitted from the record it is competent for the party interested to have the same brought before the appellate court by certiorari, although the record contains the usual clerk's certificate that it contains a full and correct copy of the record. Hoskins v. Fisher, 125 U. S. 217-223, 31 L. ed. 759.

Where the assignments of error are good but the transcript was not properly made up and certified through ignorance of the parties, the appeal need not be dismissed, but the appellant may be directed to file a proper transcript within a named time. The Ethel, 31 Fed. R. 576.

In admiralty cases a liberal practice in relation to appeals is warranted; where, therefore, the record did not aver that the damages suffered by the appellant were in a sum sufficient to give the appellate court jurisdiction and it was suggested that in point of fact the sum in controversy exceeded the jurisdictional amount, appellant was allowed a limited time to make proof of that fact. The Grace Girdler, 6 Wall. 441-442, 18 L. ed. 790.

A rule of the District Court that the clerk should prepare and deliver to the Circuit Court the appeal and record in twenty days, Held, not to prevent the Circuit Court from entertaining the cause if for any reason this was not done. The S. S. Osborne, 105 U.S.447-450, 26 L. ed. 1065.

In view of secs. 698 and 750, Rev. Stats. (U. S. Comp. Stats. 1901, pp. 568, 591), the transcript on appeal need not always contain all the proofs, entries, papers, and proceedings in the court below. Nashua & Lowell R. Cor. v. Boston & Lowell R. Cor., 61 Fed. R. 237-244, 9 C. C. A.

By Clause 6 of Rule 8, Rules of Supreme Court, the record in causes where the facts have been found in the court below shall omit the testimony. See The Adriatic, 103 U. S. 730,26 L. ed. 605.

Under the rules of the Supreme Court and the practice of the Court of Appeals, an appeal in admiralty is a trial de novo, and upon assignments of error covering questions of fact the appellate court will not review the opinion of the trial court unless all the evidence presented in the trial court is contained in the record. Nelson v. White, 83 Fed. R. 215218, 32 C. C. A. 166.

The transcript should contain all the testimony taken in the court below in appeals from the District Court to the Circuit Court of Appeals, the Act of Feb. 16, 1875, limiting the Supreme Court to a review of questions of law arising on the record not being applicable to the Court of Appeals. Ib. 217.

Where the record does not contain all the testimony, the opinion of the trial judge may be reviewed, where the assignments of error present simply questions of law, or where the findings of fact made by the trial judge in connection with his opinions supply all the material facts necessary for a determination for such questions of law as the assignments of such error present. Ib. 218.

Where in making up the record on appeal, testimony taken at the trial could not be included because it was not reduced to writing, and after motion to dismiss the appeal the evidence of witnesses who had testified for the appellant was taken de novo before a notary public, the proctors for the appellee declining to appear after notice; Held, that the district judge had no authority to certify that such new evidence was the purport of the testimony, nor could the appellate court recognize the evidence so taken, but the court remanded the case to the court below with instructions to grant a new trial. The Glide, 72 Fed. R. 200-204, 18 C. C. A. 504.

While a case may be tried de novo in the Circuit Court of Appeals it will be done in extreme cases only. Ib. 203.

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, the Court of Appeals will decline to try the facts anew. The Philadelphian, 60 Fed. R. 423, 9 C. C. A. 54.

Where the evidence taken is not reduced to writing in the lower court and there is no rule of that court requiring it to be reduced to writing, it would seem that an appeal upon the merits could only be heard, where the evidence adduced appears by an agreed statement of facts, or where a statement is made by the court of the evidence adduced, or of the facts proved. The Edward H. Blake, 92 Fed. R. 205.