VOL. 2. The transmiss, etc. "The party after he has appealed, prays apostles from the judge a quo, i. e., short letters dismissory, signed by the judge, stating shortly the case and sentence; and in the room of further apostles, declaring he will transmit all proceedings. At the time when the apostles are prayed and granted, a time is appointed within which the party is to retrocertify to the judge a quo what steps he has taken, who otherwise will proceed to execute his sentence. The apostles, when granted, are carried to the Lord Chancellor's secretary, and upon the back of them the chancellor names commissioners or judges delegates; and the commission being made out, two of them at least must accept it; which being done, they issue an inhibition to the judge below to stop all further proceedings, and a monition to transmit all the past proceedings in the cause to them; and this transmiss serves in the room of further apostles(a)." The ends to be obtained by what is here described, it will be observed, are, 1, the designation of an appellate tribunal; 2, to bring the cause under the cognizance of such tribunal; and 3, to prevent the court of admiralty from proceeding to execute its decree. In this country the appellate court is a permanent tribunal, established by law: the prompt transmission of a transcript of the record and proceedings of the district court, at the instance of the appellant, is a matter of course; and it is no less a matter of course for that court, after an appeal, to abstain from proceeding further in the cause. None of the steps recounted by Doctor BROWNE, therefore, are necessary in our courts for the purpose of accomplishing the above mentioned objects. Should the appellant fail to prosecute his appeal with proper (a) 2 Browne's Civ. and Adm. Law, 438. diligence, the appellate court, upon the petition of CHAP. 19. the appellee, would pronounce the appeal deserted, and remit the cause for final proceedings to the district court; or retain the cause, and, upon a hearing ex parte, affirm the original decree, with costs (a): and should the district court, in fact, improperly attempt to enforce its decree, notwithstanding the appeal, the appellate court would, in such case, doubtless have the power, and consider it to be its duty, upon an application for that purpose, to issue an inhibition to restrain the proceeding. We have seen that by a general rule of the Supreme Court, made before the passage of the act of 1803, it was ordered that the return to a writ of error, returnable in that court, might be made by the clerk of the court to which the writ was directed, by transmitting a true copy of the record and all proceedings in the cause, under his hand and seal of the court; and that since the passage of the act, this rule has been considered to be applicable to appeals. It may be presumed that this mode of authentication has been deemed sufficient, and actually adopted in all the districts; but unless there be a rule or established usage to this effect of the circuit court, to which an appeal is taken, the transcript ought, according to general precedent, to be certified by the district judge. The proceedings on the appeal, before the appel- Proceedings late court, are thus described by BROWNE: "The appeal proceeding, an appellatory libel is exhibited. This is contested or answered by the opposite party; the deposi (a) The Privateer Montgomery v. The Betsey, 1 Gallison's R., 416. in appellate court. VOL. 2. tions are read from the transmiss, in which all the proceedings below are made up in the form of a book; advocates are heard, and the delegates proceed to pronounce sentence, and according to their judgment decree bene or male appellatum; and in the latter case, approving of the sentence of the judge below, send back the whole cause to him, with all its incidents, to be by him carried into execution; or they may, if they please, though they remit the cause, retain the taxation and enforcement of the costs; and it must be remembered that all proceedings before the delegates are summary(a)." The appellatory libel and answer correspond with the petition of appeal and the answer thereto. But, however it may be with respect to the other regulations prescribed by the Judiciary Act, there can be no question concerning the applicability of the direction contained in the 24th section, "That when a judgment or decree shall be reversed in a circuit court, such court shall proceed to render such judgment or pass such decree as the district court should have rendered or passed." The manner of hearing will be the same, whichever of the two modes of antecedent proceeding be adopted, and will be treated of in the sequel. It is necessary now to bring under review two important subjects pertaining to appeals from the district courts to the circuit courts, concerning which practitioners in general seem not to be thoroughly informed, and relative to which, if I mistake not, some misapprehensions have hitherto prevailed. I refer, 1, to the familiar dictum, that in admiralty causes the parties are entitled in the appellate court (a) 2 Browne's Civ. and Adm. Law, 441. to allege what has not been alleged, and to prove CHAP. 12. what has not been proved in the court below-or, as it is commonly expressed-non allegata allegare, et non probata probare; and, 2, to the mode of proof on appeal. OF THE RULE NON ALLEGATA ALLEGANDI, ET NON PROBATA The first branch of the above mentioned dictum seems to have been understood by some to imply not merely the continuance, notwithstanding an appeal, of the right which the parties had in the district court, in proper cases, to amend their pleadings; but a new and superior right accruing in consequence of the appeal, to introduce new matter of controversy almost ad libitum. The difficulty of reconciling such a doctrine with that provision of the Judiciary Act which declares that the district courts shall "have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction," would seem of itself to constitute a very serious objection to such a doctrine; but in reality it has no foundation in authority. in The earliest reported case I have met with which the rule in question became the subject of judicial comment, was an appeal from the district court to the Circuit Court of the United States for the District of South Carolina. The question in that case, however, concerned, not the right to make new allegations in the appellate court, but, the right to adduce new proofs in support of the original allegations on the part of the Origin and of his rule application in our courts. VOL. 2. claimant in a suit in rem. But Mr. Justice JOHNSON, quoting the Latin maxim above mentioned, and referring generally to CLERKE and BROWNE, observes: "An appeal, therefore, in the admiralty, is rather in the nature of a new trial, in which the court does not enter into the mere consideration of the propriety of the decision of the court below, upon the evidence before it, but affords an opportunity to the appellant to present his case with the best possible aspect that new allegations or new evidence can afford it(a)." It was not necessary for the learned judge, in the case before him, to define the scope of the first branch of the rule, and his language is too general to enable the reader to infer his views concerning it. His observation is important only as an early and deliberate recognition, by an able and learned judge, of the right, to some extent, to give new allegations in the appellate court, and as showing the authority on which he supposed the right to rest. With respect to the second branch of the rule he is more explicit, and his observations upon it will be noticed in the sequel. This case was decided in 1805; and in a case which arose four years later in the Supreme Court, indirectly involving the doctrine now in question, Ch. J. MARSHALL, in pronouncing the judgment of the court, also qnotes the statement of BROWNE, that "in cases of appeal it is lawful to allege what has not before been alleged, and to prove what has not before been proved(b);" but the case did not (a) Rose v. Himely et al., Bee's R., 313. (b) Yeaton v. The United States, 5 Cranch's R., 281 (2 Curtis's Decis. S. C., 263). |