Page:Federal Reporter, 1st Series, Volume 5.djvu/234

222 FEDSBAL BEPOKTEB. �fied, now moves that execution issue against Eaymond. The motion is based on two grounds : First, that Eaymond, by appeaiing as part owner and defending the suit, is personally bound by the decree, and that, therefore, he is liable for the damages either in a suit in personam to execute the decree, or directly in this suit by the issue of execution against him ; and, secondly, because he was bound under the eleventh ad- miralty rule to ]oin in the stipulation and should be treated as if he had done so, and his f ailure to ]oin in it should not enure to the benefit of the libellant. �It is undoubtedly true that a libel in personam will, in some cases, lie to enforce a decree in rem. Penhallon v. Doane's Adm'r, 3 Dal. 64. It is also unquestionable that Eaymond is concluded by the decree as to ail matters put in issue and determined thereby, but the relief now asked must rest npon his Personal liability as owner for the damages caused by the collision, ■which he is estopped by the record from dispûting to have resulted from the fault of those in charge of the Zodiac, as adjudged. It seems also to be the practice of the admi- ralty courts in some cases, in suits in rem, where the record shows a clear right to recover m personam against one who has appeared and contested the suit, to allow the libellant to proceed to a decree in personam. Thus, Judge Betts, in his work on Admiralty Practice, says, (page 99 :) "The practice of this court is not to render a decree in personam on a libel ira rem, but, if the case proved shows a clear right to a recov- ery against the person, (whether the action in rem is sustain- able or not,) the libellant will be permitted after decree to introduce the pfoper allegations in personam, and proceed thereon. Care will, however, be taken that no surprise or advantage is allowed against the defendant by means of such change of the direction of the action. FuU notice must be given to him of the change of proceedings, and although hig appearance in the action in rem places him so within the jurisdiction of the court as to authorize it to mould the action conformably to the justice of the case, his stipulators will not be bound for any act or proceeding out of the suit in rem. So, also, if the defendant does not appear to answer or contest ����