Page:Federal Reporter, 1st Series, Volume 8.djvu/178

164 FBDEBAL BEPOBTEB. �Upon an interlocutory order of May 18th the vessel was sold for $1,850, and the proceeds, less the fees and expanses of the marshiil, ($168.29,) were paid into the re^gistry of the court to await the resuit of the suit and the intervention of sundry raaterial men whose claims have since been confessed for near $3,000. �The owner, B. F. Jones, appears and excepts to the libel, for that — �(1) It appears therefrom that there ia a misjoinder therein of a suit in rem, and ih personam ; (2) that the deoeased was a fellow servant of the master of the Chief, and therefore neither the vessel nor her owner is liable for the injury caused by the latter's negligence or want of ski 11 ; (3) that said Andrew Kay had due notice of the alleged incompetence of said master; and ,(4) that the matter is not within the admiralty jurisdiction of the United States, and of this court. �The first exception appears tO bewell taken. By the admiralty rule 15 it is provided that, "in all suits for damages by collision, the libel- lant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam. " It is a contested point whethef, independant of or antecedent to this rule, a party who was entitled to a remedy in rem and also in personam might pursue the same either against the vessel and master or the vessel and owner in one suit. Mr. Benedict (Ben. Adm. § 397) is of the opinion that he could, while Judge Conkling (2 Conk. U. S. Adm. 42) thinks it "extremely questionable." In the N. C. Bank v. iV'. S. Co.' 2 Story 16, decided (1841) befbre the promulgation of the admi- ralty inllos,' 'Mr. Justice Story said': �"In cases of collision the injured party may proceed in rem or in personam, or Buccfissively in each way, until hehaS full satisfaction ; but I do not under- stand how the proceedings Can be blended in one libel." �See, also, The Ann, 1 Mass. 512; The Cassius, 2 Story, 99. �My own impression of the matter is with Mr. Benedict, when he says (section 397, supra) — �" That whenever the libellant's cause of action gives him, at the same time, a lien or privilege against the thing, and a full personal right against the owner, then he may by a libel, properly framed, proceed against the person ajid the thing, and compel the owner to corne in and submit to the decree of the court against him personally in the same suit for any possible deflciency." �It is a question simply of procedure, and should be determined mainly, if not altogether, upon considerations of fitness and conven- ience; and ev6ry argument drawn from this source is in favor of the joinder of the remedies in rem and in personam, whoever the per- son may be,-and pursuing them in one libel as one suit. �The case is analagous to that of a debt arising out of the personal ��� �