The Mabey (80 U.S. 738)

ON motion. The owners of the Chapman had libelled in the District Court at New York, the steamtug Mabey and the sailing vessel Cooper, which the tug had been towing out to sea, for injuries caused to the Chapman by collision on the way out. The owners of both the tug and sailing vessel appeared in the District Court with their witnesses, but the owners of the tug soon withdrew from court, and gave no evidence in defence of the tug. This course, it appeared, had been done upon a written agreement between the owners of the tug and sailing vessel, that the owner of the tug should take no active part in the conduct of the suit; that no evidence should be offered in behalf of the tug, and that the owners of the sailing vessel would assume the whole defence for both, and would pay whatever damages should be awarded against either or both; for the performance of which agreement the owners of the sailing vessel entered into bond of $10,000 to the owners of the tug, with two sureties, whose solvency was then unquestioned. The District Court decreed heavy damages against both tug and sailing vessel; and an appeal was taken to the Circuit Court, where the decree was affirmed.

The case was now brought here.

Being here, Mr. W. W. Goodrich in behalf of the owners of the tug, moved that a commission issue to take the testimony of certain witnesses named. The grounds of the motion were the fact of the agreement above set forth; that the sureties in the bond had now become insolvent, and that four witnesses whose names were given, and whom it was proposed to examine, were 'material witnesses in behalf of the appellants, without whose testimony they could not safely proceed.' There was no statement of what facts it was, that the persons proposed to be examined could probably prove.

A counter affidavit stated that the answer of the owners of the tug alleged that before taking the sailing vessel in tow, the master of the tug informed the agents of the sailing vessel that it was not safe to proceed to sea in the then condition of the weather and tide, and that the agents told the master to proceed, and that their owners would assume all risks and pay all damages. It represented further that the witnesses in behalf of the tug had been brought into the District Court, and had abundant opportunity to testify, and had been sent away, on the agreement, and because the owners of the tug and sailing vessel 'combined to keep from the knowledge of the court evidence which would have tended more clearly to establish the right of the libellants to recover, and in the hope, by doing so, to throw upon the libellants the whole of the damage;' that the witnesses now proposed to be examined were entirely within the control of the owners of the tug at the hearing in the District Court and that the testimony proposed to be taken was no more important now than it had been then; and that the owners of the tug had not appealed from the decree of the District Court.

Mr. E. C. Benedict opposed the motion, as one very plainly improper to be granted even on the case presented by the party making it.

Mr. Justice CLIFFORD delivered the opinion of the court.