“ It is self-evident that a very substantial right has been taken from the suitor in an admiralty court (and for the purposes of the appeal in admiralty this court of appeals is an admiralty court) if he has been deprived of his right to examine his witnesses, and to have a trial de novo, completely de novo, on his appeal, because, as to certain of the witnesses whom he wishes to examine, they may happen to have been called by him, and examined as to some matters in the district court, or called by his adversary, and examined as to some matters in the district court. ”

“ It is the well-established rule of law that on an appeal in admiralty to the circuit court involving questions of fact depending upon confiicting testimony, the decision of the district judge, who has had the opportunity of seeing the witnesses and judging from their appearance, should not be reversed, unless it clearly appears that the decision was against the weight of evidence. ”

“ There is, however, one remarkable exception to this similarity of proceedings in appeals from gravamina and from definitive sentence, which is that in the former the party is not allowed 'non allegata allegare' and 'non probata probare.' This rule is the converse of that followed on appeals to the house of lords, and Mr. Justice Blackstone has observed that it is a practice unknown to our law, (though constantly followed in the spiritual courts,) when a superior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evidence never produced below. ”

“ The court said, (page 442:) 'The personal conduct and administration of the judge in the discharge of his separate functions is, in our judgment, neither practice, pleading, nor a form nor mode of proceeding, within the meaning of those terms as found in the context.'
In Beardsley v. Littell, 14 Blatchf. 102, Judge Blatchford decided that in an action at law in the federal court a defendant cannot before trial be examined as a witness for plaintiff out of court, although such examination is provided for by the statute of New York in suits in the courts of that state. ”

“ References to English authorities on admiralty procedure are always misleading unless the jealousy which prevented the expansion of the admiralty court, and strangled its jurisdiction and stunted its growth, and gave the common-law courts such complete power over it in England, is constantly borne in mind. ”

“ Justice Story in the case of The Boston, in 1 Sumn. p. 328, says, at page 331: 'For it is the well-known usage of admiralty courts, even after an appeal, in fit cases, in their discretion, to allow either party to file new allegations and proofs; 'non allegata allegare et non probata probare.' There is a restriction too often forgotten in practice,-'modo non obster publicatio testium,'-the effect of which is to exclude new testimony to the old articles, where any has been already offered, and to confine it to the new articles, or to those of which no proof was formerly given. ”

“ If this court should say that no colored person should be examined as a witness in an admiralty appeal, or that no person who had any interest in the event of the suit should be qualified as a witness, it would repeal section 858 of the Revised Statutes, and it would have just as much right to do so as to say that the libelant should not re-examine any witness he saw fit to on his appeal. ”

“ In the present case before us it will appear that under the old rules, under which this testimony was taken, the petitioner was entitled to take this testimony, as far as the mere taking of it was concerned, and that he did take it, though the taking of the same was objected to specifically by the respondent at the time such testimony was taken; that the petitioner was obliged to incur the expense of a stenographer, and to have such proofs printed; and that then the respondent was compelled to make a motion to suppress the testimony to bring the matter properly before the court. ”

“ A writ of mandamus may be used to compel an inferior tribunal to act on a matter within its jurisdiction, but not to control its discretion while acting, (Ex parte Railway Co., 101 U.S. 711,) nor reverse its decisions when made, (Ex parte Flippen, 94 U.S. 348.) Both these rules are elementary, and are fatal to this application. The district judge took jurisdiction of the matter, as it was his duty to do, heard the parties, and decided adversely to the claim of the petitioner. ”

“ It will be seen by reference to the admiralty rules, and also to the rules of the separate circuit and district courts, that various provisions as to the methods of taking evidence and similar points were made thereby. That a long and uninterrupted practice under a statute is regarded as good evidence of its construction is a familiar doctrine. ”

“ Burrows, 91 U.S. 426, the reasons for and object of the provisions of section 914 are described as follows: 'The purpose of the provision is apparent upon its face. No analysis is necessary to reach it. It was to bring about uniformity in the law of procedure in the federal and state courts of the same locality.' The United States judge below commented on the evidence, and it was claimed that, as the state practice prohibited this, it was error to do so. ”

“ That the proceedings of the district judge, and the orders made by him in the cause which are complained of, are not in conformity with those rules and with chancery practice, can admit of as little doubt. ”

“ He says at page 105: 'It may well be doubted whether there is anything in section 914 which applies to the subject of evidence of witnesses, either as to its character or competency or the mode of taking it. The expression, 'practice, pleadings, and forms and modes of proceeding,' is well satisfied without including in it the subject of evidence. At all events, it cannot be regarded as covering matters connected with the subject of the evidence of witnesses, which are regulated by specific provisions of law found in the same title of the same statute.'
In Ex parte Fisk, 113 U.S. 713, 5 Sup. ”

“ The Saunders, (Cir. Ct. S. D. N. Y. 1885, opinion per Wallace, J.,) 23 Fed. Rep. 303, was a case where the appellee moved to suppress the depositions of witnesses taken by appellant in the circuit (appellate) court on the ground that the witnesses were present at the hearing below at the instance of appellant, but were not then examined. ”