VOL. 2.

when this privilege appears to have been oppressively or very unreasonably used.

occur, in which, without the exercise of this liberty, they would be wholly deprived of the means of proof necessary for the establishment of their case. For instance, as it has been observed by the Queen's Advocate, where the evidence of reluctant witnesses or the answers of the adverse parties is important to elucidate the case, it is clear that these could not be obtained if the proceedings were confined to an act on petition; because it is notorious that in an act on petition the testimony is altogether voluntary, and the court has no power to compel a man to make an affidavit. Again, similar difficulties might arise in cases of fraud, where, in order to detect the real truth and foundation of the transaction, it may be necessary to have an opportunity of crossexamining the witnesses that are produced. If, therefore, the objection that has been taken to the admission of the libel rested simply with the discretion of the court, I should be disposed to reject it; but I apprehend that it is not a matter of option on my part. Cases have been cited by the learned counsel, in which the suitor's right to proceed by plea and proof has been recognized by my predecessor in this chair; and I myself recollect a case which came under the consideration of Lord STOWELL, in which it was expressly stated by that learned judge, that the proceeding by plea and proof was the ancient law of the Court of Admiralty; that the more summary proceeding, by act on petition and affidavit, was introduced for the sake of convenience alone; and that it was a matter of right in any suitor, subject to the liability for costs, to choose his own mode of proceeding.

"The case to which I refer was a case of collision; but I well recollect that the observations of Lord STOWELL were general, and not confined to cases of collision only. Upon principle, therefore, and also upon the precedent of former decisions, I am clearly of opinion that the bondholder in this suit is at liberty to proceed in the mode he has adopted, namely, by libel and the examination of witnesses. If, in so doing, any unnecessary expense or hardship shall be entailed upon the owners of the Minerva, I shall feel it my duty to protect them from any such burthen, by holding the bondholder responsible for the costs thereof, even although I should ultimately pronounce for the validity of the bond.

"As I am bound to presume that the bond was duly executed, I cannot make an order of security for the costs, until I see some special reason for so doing."

CHAP. 1.

JOINDER OF SUITS IN REM AND IN PERSONAM.

In a suit for pilotage, prosecuted in rem against the vessel, and in personam against the master, Mr. Justice STORY, in pronouncing his judgment on the merits of the case, observed that it was, under the circumstances, unnecessary to decide "whether a proceeding in personam and in rem can be regularly combined, so as to entitle the libellant to a decree in personam, if he fails to establish his claim in rem(a).

The same question again presented itself for consideration in another more recent case of a suit on a contract of affreightment, and was fully discussed by the same learned judge. "In the course of the argument," he observed, "it was intimated, that in libels of this sort, the proceedings might be properly instituted both in rem against the steamboat, and in personam against the owners and master thereof. I ventured at the time to say, that I knew of no principle or authority, in the general jurisprudence of courts of admiralty, which would justify such a joinder of proceedings, so very different in their nature and character, and decretal effect. On the contrary, in this court, every practice of this sort has been constantly discountenanced, as irregular and improper(b)."

(a) The Ann, 1 Mason's R., 508, 512.

(b) The Nantucket Citizens' Bank v. The Nantucket Steamboat Company, 2 Story's R., 16.

Mr. Justice STORY proceeded to comment upon a case in the High Court of Admiralty of England, which had been cited at the bar; and

VOL. 2. In another case, decided at the same term, in

which the libel, or a charter-party executed by the

the following extract, in addition to any light it may shed upon the question under consideration, will serve the further purpose of exemplifying the great and often insuperable difficulty which the ablest and best instructed American lawyer has to encounter, in attempting to ascertain the actual practice of the English Court of Admiralty. Indeed, it may reasonably be inferred, from the confused, obscure, and, in some respects, nonsensical statements rather ostentatiously introduced by Mr. CHITTY on the subject, in the second volume of his General Practice, that this knowledge is but little less inaccessible to an English lawyer habituated only to the practice of the common law courts. Strange as it may seem, it appears, moreover, by the very latest reports which have reached us. of the decisions of the High Court of Admiralty, that its practice, in many particulars, is still uncertain and fluctuating.

"The case of The Friend [Triune] (3 Haggard's Adm. R., 114),” the learned judge added, "was cited at the bar, in support of the right to join the proceedings. The case is very imperfectly reported; but it appears that the original proceeding was in rem against the ship, for collision; and that Wardell, who was the master and also the principal owner, and to whose negligence the libel attributed the collision, alone appeared in the suit. By the statute, 53 George III., ch. 159, the owners, when the loss has been without their fault or privity, are not liable beyond the value of their ship and freight; but the owners who are in fault, and the master also, are liable to full damages to the extent of the injury done to the other party. No bail was given. The freight was brought into court; the ship was sold; and the proceeds falling short of the damages by £400, a monition issued against Wardell to pay that sum, which failing to do, he was imprisoned on an attachment, moved for and granted by the court. Now it is apparent that there was a great peculiarity in this case; Wardell being the sole party who intervened, and being by the statute liable for the full damages. A monition issued before the attachment was granted; and if that monition was preceded by a supplementary libel, or act on petition, stating the facts of the sale of the ship, and the deficiency to pay the damages, the proceeding was clearly regular and right. But if no preliminary proceeding was had, I confess that I do not well see how a proceeding, originally in rem, could be prosecuted in personam against a party, who in such proceeding intervened only

master, was in rem, and also against the master in CHAP. 1. personam, Judge STORY, at the conclusion of his

for and to the extent of his interest. Probably there were other circumstances which varied the general rule. At all events, I am not prepared to accede to the authority of this case, if it is to stand nakedly and only upon the circumstances above stated. In cases of collision, the injured party may proceed in rem, or in personam, or successively in each way, until he has full satisfaction; but I do not understand how the proceedings can be blended in the libel."

It is proper to add, that the dissent of this eminent American judge from the decision of Sir JOHN NICHOLL, in the case of The Triune, has since been fully sustained by his successor in the High Court of Admiralty. In the case of The Hope (1 W. Robinson's R., 155), the value of the vessel being insufficient to answer the damages decreed in an action of damage by collision, an application was made to the court to charge the excess of damage beyond the proceeds of the ship, upon the master of the damaging vessel, he being a part-owner, and as such, being personally responsible therefor. This application was opposed, as "unsustainable in principle, and wholly unprecedented in the practice of the court;" and the motion was denied by Dr. LUSHINGTON, the present distinguished occupant of the chair of the High Court of Admiralty. The supposed "hardship upon the owners will not," he observed, "entitle me to exercise a jurisdiction in their behalf, which, according to my own impression, I clearly do not possess. I am not aware of any case in which this court, in a proceeding of this kind, has ever engrafted upon it a further proceeding against the owners, upon the ground that the proceeds of the vessel proceeded against have been insufficient to answer the full amount of the damage pronounced for."

In a subsequent case of collision (The Volant, 1 W. Robinson's R., 383), a like application was made; the counsel for the plaintiff's moving the court "to have the decree taken down, not only against the vessel, the value of which was wholly insufficient to cover the amount of damage in question, but also against the master, who was a partowner of the Volant [the damaging vessel]; and in support of his motion, he cited the case of The Triune." This case, it appears, was now, for the first time, brought to the notice of Dr. LUSHINGTON; and he postponed his decision for the purpose of further consideration. On a subsequent day, adverting to the conflict between his own former decision and that of his immediate predecessor, he said he thought it

VOL. 2. opinion, again observed: "As the master has died

pending the proceedings, and no revivor of the suit, as to him, has been moved for, it is unnecessary to consider whether a proceeding in rem and in personam can be instituted in the admiralty, in a case of this sort(a)."

It appears, however, that this form of proceeding was resorted to in a late case of collision, before the District Court of the United States for the Eastern District of Louisiana; and though the cause was carried by appeal to the Supreme Court, it does not appear by the report of it that any exception was taken to the form of the action, and the decree of the district court, in favor of the libellant, was affirmed. The suit was commenced in 1844, before the promulgation of the new rules of practice, and came before the Supreme Court in 1847(b).

I have deemed it proper to show the footing on which the question rested in point of general prin

his duty to consider the question as an open question; and, as such, he proceeded elaborately to discuss it. His conclusion was that his former decision in the case of The Hope was unquestionably sound.

These decisions, although they are perfectly conclusive against any power in the court to enforce a personal liability beyond the value of the thing proceeeed against in a simple suit in rem, are not, it will be seen, necessarily so against the regularity of formally joining a suit in personam in the same action with a suit in rem; but the absence in the English reports, as far as I remember, of any such practice, unless perhaps in suits for mariners' wages, furnishes ground for the supposition that it is deemed to be inadmissible.

(a) Arthur et al. v. The Cassius, 2 Story's R., 81, 99.

(b) Waring v. Clark, 5 Howard's R., 441 (16 Curtis's Decis. S. C., 456).