The Mabey, 77 U.S. 419 (1869)
U.S. Supreme CourtThe Mabey, 77 U.S. 10 Wall. 419 419 (1869)
77 U.S. (10 Wall.) 419
1. When a motion is made by an appellant to examine witnesses in this Court in an appeal in admiralty, the appellant should show some excuse satisfactory to this Court for the failure to examine them in the courts below, such as that the evidence was discovered when it was too late to procure such examination or than the witnesses had been subpoenaed and failed to appear and could not be reached by attachments and the like.
2. Hence where on such a motion his affidavit stated only that the witnesses were material ones without whose testimony he could not proceed to the hearing, as he was informed and believed and as he was advised by his counsel after a full statement to him of the facts which he expected to prove by the persons whom it was proposed to examine, the motion was denied.
Atkins had libeled the steam tug Mabey in the district court at New York for injury done by the Mabey to a vessel of his then in New York harbor. The district court decreed in his favor, and the circuit court affirmed the decree. The owner of the Mabey appealed to this Court, and Mr. T. M. Wheeler, in his behalf, now moved the Court for a commission to take further evidence to be read in this Court on the hearing. The affidavits on which the motion was founded gave the names of several witnesses represented as residing in New York and Brooklyn, and swore that
"they were material and necessary witnesses in the action on behalf of the appellant, without the benefit of whose testimony he could not safely proceed to trial, as he is informed and believes, and as he is advised by his counsel therein, after a full and fair statement of the facts which the appellants expect to prove by the said witnesses."