103 U.S. 730

103 U.S. 730

26 L.Ed. 605


October Term, 1880

APPEAL from the Circuit Court of the United States for the Southern District of New York.

Motion to strike from the transcript the depositions and oral testimony taken in the progress of the cause in the several courts below.

Mr. E. P. Wheeler in support of the motion.

Mr. William Allen Buther, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.


Sect. 698 of the Revised Statutes provides that, upon the appeal of any cause of admiralty and maritime jurisdiction, a transcript of the record shall be transmitted to this court 'and copies of the proofs and of such entries and papers on file as may be necessary on the hearing of the appeal.' While sect. 1 of the act of Feb. 16, 1875, c. 77 (18 Stat., pt. 3, 315), limits the review by this court of the judgments and decrees on the instance side of courts of admiralty and maritime jurisdiction to the questions of law arising on the record, and to such rulings of the court below excepted to at the time, as may be presented by a bill of exceptions, and requires the court below to find the facts, no change has been made in the law prescribing what should be included in the transcript sent here on an appeal. For that reason we will not order the testimony which has been sent up in this case to be stricken out. As under our repeated decisions, the facts as found are conclusive on us, it is clear the testimony may not be 'necessary on the hearing of the appeal.' The Abbotsford, 98 U. S. 440; The Benefactor, 102 id. 214. For this reason it may with propriety by consent of counsel be omitted from the printed record. We will not, however, make any order in that behalf; but if it shall be unnecessarily printed against the wishes of either of the parties, we will, on the final determination of the case, give such directions in respect to costs as may seem proper.


The section of the Revised Statutes referred to, however, requires only copies of such of the proofs to be sent up 'as may be necessary on the hearing of the appeal.' This gives us power to prescribe by rule what shall be done in cases where the act of 1875 applies. For the guidance hereafter of parties appealing, and the officers of the courts below in such a case, we, therefore, now promulgate the following as an additional paragraph, numbered 6, to rule 8:——


'6. The record in causes of admiralty and maritime jurisdiction, where under the requirements of law the facts have been found in the court below, and our power to review is limited to the determination of questions of law arising on the record, shall be confined to the pleadings, the findings of fact and conclusions of law thereon, the bills of exceptions, the final judgment or decree, and such inter-locutory orders and decrees as may be necessary to a proper review of the case.'

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