a fund to a person therein named, the Circuit Court of Appeals presumed that such payee was a party to the suit or appeared below as a claimant, in the absence of evidence upon the point.20 "Where the final condition of the record is in accordance with the substantial rules of law, neither equity nor admiralty looks at the intervening steps.2 21

An appeal in admiralty by either party from the District Court to the Circuit Court of Appeals vacates altogether the decree of the District Court and opens the whole case for trial anew in the appellate court.22 In some respects an appeal in admiralty is a new trial. The cause is tried before the appellate court de novo.23 The pleadings may be amended, and new proofs introduced, or a new decision may be sought on the pleadings and proofs which were before the District Court.24

The appellate court may make findings proved by the evidence which the court below has failed to find.25 The respondent may assign error in the failure to charge with liability another respondent who has not appealed and he may avail himself of charges against the latter which the libel contains.26 A decree for the libelant may be increased although the respondent alone has appealed.27 A party who has not appealed may be charged with costs as if he were an appellant when he has failed in an attempt to obtain an alteration of the decree in his favor.28 He cannot, however, at least before argument, object to a withdrawal of the appeal.29 Where upon a joint libel stating separate causes of action, as to some of them no finding or decree was made below, and the only appeal was by the claimant from decrees in favor of some of the libelants on one cause of action, the record not containing evidence relating to the others; it was

20 The Falcon, C.C.A., 177 Fed. 916. 21 Putnam, J., in The S. L. Watson, C. C. A., 118 Fed. 945, 951.

22 The San Rafael, C. C. A., 141 F'ed. 270.

28 Irvine v. The Hesper, 122 U. S. 256, 30 L. ed. 1175; Reid v. Fargo, 241 U. S. 544; The Kaiser Wilhelm II, C. C. A., 246 Fed. 786. See infra, § 687.

24 The Lucille, 19 Wall. 73, 22 L. ed. 64.

25 The Fullerton, C. C. A., 211 Fed. 833.

26 The Willie, C. C. A., 231 Fed. 865.

27 Consolidation Coastwise Co. v. Conley, C. C. A., 250 Fed. 679. 28 The Bronx, C. C. A., 250 Fed. 843.

29 The John Twohy, C. C. A., 256 Fed. 224.

held that the appellate court could not try the case anew and enter decrees upon such other causes of action.30

Where a decree determined the issues upon separate causes of action, the acceptance by the libelant of payment of the amount awarded him upon some of them did not deprive him of the right to appeal from so much as denied him the right to recover upon the others.31 According to the old practice, within ten days from the taking of the appeal the appellant must file with the clerk of the District Court, and serve upon the proctor for the appellee, a petition of appeal,32 which is a summary statement of the proceedings in the cause, showing when and for what the libel was filed, when the answer was filed. and what relief was prayed for in it, when and before whom the cause was tried, what the decree of the District Court was, when it was entered, and when the appeal therefrom was taken. It must state whether the appellant intends to make new allegations or proofs in the Circuit Court of Appeals, to pray different relief, or to seek a new decision on the fact.

The appellant cannot amend his pleadings or take new proofs in the appellate court unless he had stated his intention to do so in his petition of appeal.33

Unless the appellant gives security for damages and costs, the decree of the District Court may be enforced at the expiration of the time limited by the rules, as if there had been no appeal. The bond runs to the appellee, and should be executed by the appellant and two sureties; but it is not necessary that all the appellants should sign the bond.34 The obligation of the bond is that the appellant will prosecute his appeal to effect, and answer all damages and costs that may be decreed against him by the appellate court, if he fail to make his appeal good. If a stay of execution is not sought, the bond may be given for costs.

30 The John and Winthrop, C. C. A., 182 Fed. 380.

31 The C. S. Holmes, C. C. A., 237 Fed. 785.

32 The rules of the Second Circuit do away with the necessity for a petition of appeal and provide that the record shall contain a summary statement of the proceedings in the cause.

33 Phenix Ins. Co. v. Liverpool & G. W. S. S. Co., 22 Blatchf. 372; S. C., sub nom. The Montana, 22 Fed. 715, 730.

34 Brockett v. Brockett, 2 How. 238. In the Second Circuit the amount of the bond for costs is $250 (C. C. A. Rule 11, 2d Ct.)

only. So, if the security given in the District Court is by its terms enforceable in the appellate court, an additional bond for the whole claim will not be exacted. Security will be required only in an amount sufficient to pay the costs of the suit and damages for delay, and costs and interest on the appeal.35

The general rules of the Circuit Courts of Appeals provide that the appellant shall file an assignment of the errors which he intends to urge on appeal, and that errors not so assigned will be disregarded.36 Rule 11 is broad enough in its terms to include admiralty causes. It is therefore necessary for the appellant in admiralty to file a formal assignment of errors,37 except in the Second Circuit and such other Circuits as have by rule provided for appeals without the assignments.38 An assignment that the court erred in not dismissing a libel against a vessel with costs was a mere expression of opinion of counsel as to the duty of the District Judge, and not a sufficient assignment of error.39 Where a computation made by a commissioner in admiralty contains a plain error, which was called to the attention of the court, it may be corrected in the appellate court, although no formal exception was taken on that ground to the commissioner's report.40 A bill of exceptions is not required on an appeal in admiralty from the District Court. The apostles as the transcript is called are made as provided in Rule 49 of the Rules of the Supreme Court in Admiralty.41

35 C. C. A. Rule 13; The Brantford City, 32 Fed. 324.

36 The Stadacona, C. C. A., 242 Fed. 624.

37 See infra, §§ 699, 700.

38 In the Second Circuit the rules adopted May 20, 1892, do away with the necessity of an assignment of errors. Their validity in this respect has not been decided by the Supreme Court.

39 The Wyandotte, C. C. A., 145 Fed. 321.

40 The Eliza Lines, C. C. A., 132 Fed. 242.

41 The clerks of the District Courts shall make up the records to

be transmitted to the Circuit Court of Appeals.

I. They shall contain the following:

A. The style of the court.

B. The names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has taken place.

C. If bail was taken, or property was attached or arrested, the process of the arrest or attachment and the service thereof, all bail and stipulations, and, if any sale has been made, the orders, warrants, and reports relating thereto.

The Act of February 16, 1875,42 which required the Circuit Court to make findings of fact and conclusions of law, was designed to relieve the Supreme Court from the necessity of deciding questions of fact in admiralty causes. It does not apply to appeals to the Circuit Court of Appeals.43 It has been repealed. When upon appeal from a consent decree finding that all the material allegations of the libel were true, classifying claimants of liens and awarding those in one class a priority, was reversed because no reason for the preference appeared upon the record and the case was remanded "for a decree in accordance with the conclusions of this opinion"; it was held that the District Court had no authority to retry the question of priority upon evidence but that the consent concluded all the questions of fact and that a new decree must be entered allowing the appellant to share pro rata with those who were given a priority. The practice upon appeals to the Supreme Court in Admiralty is the same as that upon other appeals to that tribunal, except that in prize cases testimony might perhaps be taken upon the appeal.46

§ 592a. Further proof on appeal in admiralty. Although an appeal in admiralty opens the decree of the lower court, and gives the parties another trial, the proofs adduced in the District Court are invariably used in the appellate court.

Further proof taken by leave of a Cireuit Court of Appeals or the Supreme Court on an appeal in admiralty shall be taken in such manner as may be prescribed by statute or by said court.1 In the Supreme Court the following rule prevails: "1. In all cases where further proof is ordered by the court, the depositions which may be taken shall be by a commission, to be issued from this court, or from any district court of the United States. 2. In all cases of admiralty and maritime jurisdiction, where new evidence shall be admissible in this court, the evidence by testi

$ 3.

42 18 St. at L., p. 315, ch. 77,

43 The Havilah, C. C. A., 48 Fed. 684. It was held on appeal from a District to a Circuit Court that defective process could not be cured by amendment. The City of Lincoln, 19 Fed. 460.

44 Munson S. S. Line v. Miramar

S. S. Co., C. C. A., 167 Fed. 960, 93 C. C. A. 360; The Nyack, C. C. A., 199 Fed. 383.

45 The Steam Dredge A, C. C. A., 229 Fed. 682.

46 For the practice, see infra, Chapter XXXVI, on Writs of Error and Appeal.

§ 592a. 1 Adm. Rule 45.