Opinion
OCTOBER TERM, 1875.
Depositions taken under a commission from a circuit court in an admiralty case, after an appeal to this court, will not be made a part of the record, unless a sufficient excuse be shown for not taking the evidence in the usual way before the courts below.
Mr. Thomas J. Durant filed a certified copy of the order of the said Circuit Court, bearing date June 1, 1875, for a commission to take the deposition of certain witnesses to be used here, and moved that the depositions taken thereunder be made a part of the record.
APPEAL from the Circuit Court of the United States for the District of Louisiana.
The decree of the Circuit Court in this case was signed Feb. 13, 1874. An appeal was taken therefrom, and the record filed here on the thirteenth day of the following October.
The depositions in question were taken since the appeal, under a commission issued from the Circuit Court. Further proof in the case has not been ordered by this court. No such order would have been granted if application therefor had been made, unless a sufficient excuse was shown for not taking the evidence in the usual way before the courts below. This was the rule established in the case of The Mabey, 10 Wall. 419. We cannot admit depositions taken under a commission from the Circuit Court, except upon a similar showing. That has not been made. Leave is granted to renew the motion if this defect can be supplied.
Motion denied.