ent subject, as the Circuit Court had no original jurisdiction in admiralty.55

207. THE PROCESS OF APPEAL

The process of appeal varies in the different circuits under their different rules. In the Fourth circuit, as soon as the final decree is entered in the District Court, a petition is filed in that court, addressed to the judges of the Circuit Court of Appeals, praying an appeal, and assigning errors. On this the District Judge (or any judge of the appellate court) indorses: "Appeal allowed. Bond required in the penalty of $ , conditioned according to law"-and signs it. He also signs the citation, which is the notice of appeal given to the other side, and cites him to appear in the appellate court at a day named to defend his decree. A certified copy of the entire transcript is then obtained from the district clerk, and filed with the clerk of the appellate court, who dockets the case, and, when secured as to costs, has the record printed.

Under the act of February 13, 1911, the appellant is allowed to print his own record, instead of securing a transcript from the clerk of the trial court and then having it printed by the clerk of the appellate court.56

The act of March 3, 1891, provides that the appeal must be taken within six months from the decree complained of, "unless a lesser time is now allowed by law." Appeals in admiralty cases are governed by the six months limitation, and are unaffected by the clause above quoted.57

§ 206.

55 36 Stat. 1087 (U. S. Comp. St. §§ 968–1274).

§ 207.

56 36 Stat. 901 (U. S. Comp. St. §§ 1656, 1657).

57 New York, 44 C. C. A. 38, 104 Fed. 561; Robins Dry Dock & Repair Co. v. Chesbrough, 216 Fed. 121, 132 C. C. A. 365.

208. QUESTIONS OF FACT ON APPEAL

Although the intent of Congress to give an appeal on questions both of law and fact is clear, and it is notorious that the act of February 16, 1875, while it was in force, was far from satisfactory, this has been largely frittered away by judicial decisions. The appellate courts have gone very far in practically refusing to review questions of fact where the District Judge has had the witnesses before him, though not so far where part or all of the evidence has been by deposition. This doctrine is largely an abdication of the trust confided in them, and, for an admiralty court, smacks too much of the old common-law fiction as to the sacredness of the jury's verdict. Under the old law giving a review on questions of law and fact the Supreme Court has more than once spoken of a right of appeal as something more than a shadow,58

A finding, unsupported by any evidence or ignoring material and proven facts, will be disregarded.59

In fact, this theory about the trial judge being endowed with clairvoyance because he saw the witnesses has degenerated into a mere makeweight for that filius nullius, the per curiam opinion.

The judicial ermine, unlike the mantle of Elijah, confers no supernatural powers. The most truthful men often make the worst witnesses. If the trial judge could decide

§ 208. 58 Post v. Jones, 19 How. 150, 15 L. Ed. 618; ARIADNE, 13 Wall. 475, 20 L. Ed. 542; City of Hartford, 97 U. S. 323, 24 L. Ed. 930; Gypsum Prince, 67 Fed. 612, 14 C. C. A. 573; Glendale, 81 Fed. 633, 26 C. C. A. 500; Albany, 81 Fed. 966, 27 C. C. A. 28; Captain Weber, 89 Fed. 957, 32 C. C. A. 452; Lazarus v. Barber, 136 Fed. 534, 69 C. C. A. 310; Kia Ora, 252 Fed. 507, 164 C. C. A. 423.

59 Darlington v. Turner, 202 U. S. 195, 26 Sup. Ct. 630, 50 L. Ed. 992; Fullerton, 211 Fed. 833, 128 C. C. A. 359.

cases at their close, as juries render verdicts, there would be more force in the idea. But in districts of crowded dockets, where numerous cases, each with numerous witnesses, are tried in rapid succession, and then taken under advisement for months, nothing short of a moving picture screen, with a photographic-phonographic attachment, could bring it back to the judicial mind. To give this amiable fiction the scope which it has often been given is in effect to deny an appeal on questions of fact, which the statutes are supposed to give. That seeing the witnesses is an advantage cannot be denied. But its importance has been grossly exaggerated. Surely the combined intelligence of the three appellate judges as against the one trial judge ought to overbalance it.

209. NEW EVIDENCE

A peculiar feature of admiralty appeals formerly was that an admiralty appeal was a new trial. An appeal from the district to the circuit court was like one from a magistrate in the state procedure-new witnesses could be examined, and the circuit court entered its own decree, and issued its own execution, instead of remanding the case to the district court for future proceedings.

Even an appeal from the Circuit to the Supreme Court was so far a new trial that additional witnesses could be examined, but the Supreme Court restricted this right by rule to evidence which could not have been produced in the lower courts, and required it to be taken by deposition. In other words, they discouraged the practice as much as possible on account of its obvious injustice and liability to abuse.60

The new appellate courts have adopted substantially the same doctrine. In case an appeal is taken up with a record

§ 209. Go Mabey, 10 Wall. 419, 19 L. Ed. 963.

not containing the evidence, they will not review the facts at all.or

It is still a new trial in its effect on the decree of the trial court-so far in fact that the appellate court can consider changes in fact and law arising after the decree.®2

In the Glide, 63 a case was tried in the District Court of Maryland, the witnesses being examined ore tenus, but there was no rule in that district requiring their testimony to be taken down, and it was not taken down. The unsuccessful party appealed, and asked for a commission to retake his testimony for use on appeal. The court permitted it, on the ground that it was not his fault if the district court rule did not provide for such a case. The court, after arguing out his right to retake his testimony, ended its opinion by saying that the case must not be taken as a precedent, and any party who omitted or neglected to have his testimony taken down must suffer the consequences. So it sounds very much like a verdict of "Not guilty, but don't do it again."

The fact that there was no rule requiring it was not much of an excuse. In the common-law courts there is no rule or statute requiring evidence to be preserved for the purpose of preparing bills of exceptions, but the lawyer who gave that as an excuse for not setting out the evidence in his bill would receive scant consideration from a judge.

The well-known characteristics of sailor witnesses, and the utter lack of any check on them in case their testimony is not in black and white, especially after they have found out by hearing the arguments in the first trial how their

61 Philadelphian, 60 Fed. 423, 9 C. C. A. 54.

62 Hawkins, In re, 147 U. S. 486, 13 Sup. Ct. 512, 37 L. Ed. 251; Reid v. Fargo, 241 U. S. 544, 36 Sup. Ct. 712, 60 L. Ed. 1156; Watts, Watts & Co. v. Unione Austriaca di Navigazione, 248 U. S. 9, 39 Sup. Ct. 1, 63 L. Ed. 100, 3 A. L. R. 323.

63 72 Fed. 200, 18 C. C. A. 504.

case should be strengthened, render the procedure permitted in this case one of the gravest danger. 64

Under the present law, the appellate court remands the case to the District Court for final action, instead of entering its own decree, as the old Circuit Court did.

64 Taylor v. Harwood, Taney, 437, Fed. Cas. No. 13,794. In Neilson v. Coal, Cement & Supply Co., 122 Fed. 617, 60 C. C. A. 175, the same court and judge emphasized the necessity of having the testimony taken down in the trial court. See, also, McDonald, 112 Fed. 681, 50 C. C. A. 423.