Page:Federal Reporter, 1st Series, Volume 10.djvu/609

HIBEBNU INS. CO. V. ST. LOUIS de NEW ORLEANS TKANSP. 00. 697 �Tbbat, D. J. The Babljage Transportation Company, by differ- ent contracta of affreightment with different shippers, undertook to transport to New Orleans certain marchandise «pecified. Said mer- chandise was shipped at different times on different barges, which were towed by different steamers. It la averred that the same, respeetively, was damaged or lest through the negligence of said transportation company, under entirely different circumstanoes. ihere is no averment that judgment in rem or inpersonam was ever in admiralty or at common law had, but that the plaintiff, as insurer, paid the amount of the respective losses, and, being thereby subro- gated to the rights of the respective shippers, can maintain the cause in equity before recovery had on the original demanda. The bill avers that, after said cause of action accrued against the Babbage Transportation Company, said company transferred fraudulently to the other defendant company all of its beats, barges, etc., and that Lowery, being president and principal stockholder, caused said transfer to be made. The prayer of the bill ia for a decree as for a moneyed judgment against the defendants, also to charge the prop- erty transferred as aforesaid with a lien in plaintiff 's favor therefor, and for an injunction pendente lite against the further sale or trans- fer of said property. �It is obvions that if this mode of procdfeding can be upheld the court will have primarily to ascertain whether the Babbage Company, as owner of the respective barges or steamers, was liable for the alleged losses. In admiralty, if a loss occurred as charged, the shippers had their appropriate remedy in rem or in personam, with a resultant lien in rem on the barges and steamers involved, or, at common law, actions on the different contracta of affreightment. The rights of the ship- pers would pass to the insurers by subrogation. No such legal pro- ceedings, however, have been had. The plaintiff ia merely a crediter at large aa to two aeparate demanda, requiring distinct triala, Of course, two such demands oould not be united in an action in rem in admiralty, because the transactions and the vessels were different. Whether they could be united in personam it ia not necessary to dis- cuss, but in equity suchjoinders are frequent. The right to join the two demands must rest, then, upon the allegations aa to the fraud- ulent transfers, the same having been made with knowledge of the plaintiff's claima, and impliedly to defeat the same. �By what rule was that property or the vendee thereof charged with the unascertained obligations of the vendor ? It must be, it at all, ��� �