The New York herald., 1871-03-09
UNITED STATES SUPREME COURT.

Accepting an Indemnify Bond from q Co
defendant Who Assumes the Conduct of tho
Suit-Important Decision.
The Steanat,ag n. L. Maoev. John Cald,ceu Ell al
Executors Appellants us. Joshua Atkins ct aL Ap
Iellees.-This was O motion for q commission to
take the testimony Of certain witnesses on behalf
Of the appellant the steamtug r. L. Mabey, and was
argued during the present term OF the Supreme
Court.
Damages were claimed by the owners Of the ship
Isaac +. Chapman for injuries which the ship re.
celved In collision that occurred between the ship,
while she was lying at o dock in the port OF New
York, and the steamtug r. L. Mabey and the ship
Helen H. Cooper, which at the time Of the collision
was In tew OF the steamug. more fully set forth
In the libel filed In the District Court. Serious IN
jury resulted to the ship OF the bellant, and they
alleged that the sleamtug and the ship Helen X.
cooper were both IN fault. Separate answers were
filed by the claimants OF the tug and tow, and both,
the day for the hearing arrived they entered into
the following stipulation, which Is an exhibit in the
lotion before Inc Inc court @ 9mitlnG mt the names 10, OF
proctors. the stipulation reads as follows:-
hereby stipulated By and between the parties repre-
that said ship Helen Cooper shall and does hereby
the conduct OF the defence, and that ali and
shah be assumed and paid BY said ship Helen R. Cooper.
Application Tor the same purpose as that described
In the motion was made TO this Court by the appel
lants prior occasion during the present terra OF
the court; but II was refused, "a no excuse Was
shown in the petition or accompanying papers why
the witnesses were not examined either in the DIS
trct or circuit courts, and the Court said some ex-
cuse should be shown satisfactory 10 this Court for
the failure TO examine them In the courts below.
such as tnat the evidence was discovered when IL
was too late to procure such examination, or that
the witnesses had been subp9naed and failed to ap-
pear and could not be reached by attachment and The
like. Commissions for such purpose cannot be al
lowed as OF course under the twelfth rule, as 1t
would afford an lnducement TO parties to keep back
their testimony in the subordinate courts, and the
eject would be TO convert this court into court OF
original Jurisdiction. Admenished TO that effect by
the prior decision OF this court the parties have
compliance with that requirement. Unsettled as
the practice prior to that decision the parties
are right IN supposing ,.d that this =, Court m
same case. Governed by these views the Court has
examined the aflldavlt and the reasons given why
the testimony was not taken prior to the hearings
constrained to say that the reasons given not
satisfactory, as they show that the witnesses were
In court and that they were not examined, because
the party now asking lOr the commission agreed
that they would not introduce any testimony In the
case and that the affidavit shows that they did not
introduce any IN the District Court, and did not ap.
peal from the decree, and OF course they did not and
seuld not introduce any In the Circuit Court, as
In the subordinate court cannot be heard
in the appellate court in opposition 10 the decree in
the subordinate court, unless ne himself appealed
from the decree (rhe William Bagaley, 5Wall, AL;
The Maria Martin, 10 Wall.l Instead Of being satas-
factory, the reasons set forth IN the afdavIt why
the testimony not introduced In the trials below
are persuasive and convincing that the motion
ought not to De granted. Having accepted the bond
OF ndemdty and failed TO make any defence, the
risk to the suffciency OF the suretes was upon
the present appellants and the fact that they mis-.
Judged or are dis IN mat behalf furnishes
Motion denied.