Page:Federal Reporter, 1st Series, Volume 1.djvu/889

 MAINWAEING ». BARK CAEEIB DELAP. S81: �voyage which ■was on the permanent deck, especîally the sait ; also that the baies of bags were of such size that they eould not ali have been stowed on the permanent deck ; and that, with reference to the trim of the ship, it waa neoessary to stow a part of them as they were stowed with reference to the bleaching powders. Most of this evidence ia net of a character properly called newly discovered, since it was plainly discovered by the claimants before the trial. �But the motion must be denied, because the case has beea caref uUy tried in this court, at great expense to the parties, and if it should now be heard over again the claimants wiU have no greater benefit from this further testimony than they will have on a trial in the circuit court on appeal, to which they are entitled as matter of right ; and after a rehearing here the decision would not be final. No doubt one of the reasons for giving a new trial in the circuit court is to give the parties an opportunity to produce, upon a second trial, any evidence which was overlooked upon the first trial, or, in other ways, to strengthen their case. If the decision on the facts in thia court were final, there would be some ground for this application; but, with the right of the claimants on ap- peal to Bupply ail the deficienciea that they may have dis- covered from the experience of the trial in this court, it would be most unreasonable to subject the libellant to the further delay and expense of a new trial here, which may not be final. �2. The testimony referred to, as having possiby been over- looked by the court, waa not overlooked. It was carefuUy considered. It is the testimony of William McEae, the chief officer of the bark, that the storage of the cargo as it was stowed had reference to the trim of the ship. One point de- termined by the court was that as it appeared that the baies of bags in?jured sustained that injury from their stowage with reference to the bleaching powders, and as it also appeared that if stowed further away they would not have been injured, it was incumbent on the ship to show that the proper trim of the ship made it necessary to stow them in thia da^erouf ��� �