MOTION to dismiss an appeal; the case being thus:
In March, 1867, Harris, Howell & Co. libelled the steamer Eutaw, in the District Court at New York, for repairs, supplies, advances, and labor and services to the vessel, at Wilmington, N. C. The answer denied generally the allegations of the libel. A reference was made by consent to a master to ascertain and report the amount due; 'the same proof of the payment and propriety of payment of bills to be made as if before the court.' The master, after admissions or proofs heard, found $4140.94; one item of this sum being $1000 for 'commissions at 2 1/2 per cent.,' and this item being allowed on an allegation of a custom of maritime countries, and of which, as prevalent at Wilmington, specific proofs were given or attempted, in the shape of affidavits from commission merchants of that place, and otherwise in more formal shape. This item, unlike most of the charges, was apparently not admitted, though it was not attempted specifically to be dis-proved, it being left to be judged of on the record and the law. The respondents not excepting, so far as the record seemed to show, to this item of $1000, or to any other item found in the report, nor moving any correction nor objecting to confirmation, the report was confirmed in May, 1868, by the District Court. From that decree the respondents appealed in about two years afterwards (March 19th, 1870), to the Circuit Court, assigning error in a general allegation, 'that the said decree is erroneous inasmuch as the said libellants were not entitled to the damages claimed in the premises;' and in the prayer for an appeal stating that on the appeal the appellant 'intended to make new allegations and introduce the same and new and further proofs.' In the Circuit Court, no new allegations being made of record, nor further proofs introduced, the case was argued and taken into advisement. As was said in the briefs of one side, and not contradicted in those of the other, the court on one hearing (before Nelson, J.), set aside the report or decree, though afterwards, on reargument (before Woodruff, J.), affirmed it. Nothing of this difference of view between the judges appeared on the record.