PROVIDENCE WASHINGTON INS. CO. v. WAGER et al.

District Court, N. D. New York.

February 28, 1888.

ADMIRALITY—PROCEEDINGS IN REM AND IN PERSONAM.

An action in admiralty in rem is not a bar to an action in personam, growing put of the same facts, and the respondent in the action in personam is not entitled to a stay of the proceedings pending an appeal in the action in rem.

In Admiralty. Libel in personam.

Edward D. McCarthy, for libelants.

Hyland & Zabriskie, for respondent Wager.

Clinton & Clark, for respondents Morse.

COXE, J. This is a motion, in an action in personam, by the respondent Charles E. Wager, for a stay pending an appeal to the supreme court, taken in an action in rem, growing out of the same facts. The Sidney, (Dist. Ct.,) 23 Fed. Rep. 88; The Sidney, (Cir. Ct.,) 27 Fed. Rep. 119. It is entirely clear that the suit in rem is not a bar to the present action. In view of the authorities it is, at least, doubtful whether the respondent is right in his theory that the libelants can, in the action in rem, by motion and amendment, obtain a decree in personam. But even if this can be done, it in nowise prevents them from proceeding in a separate action if they elect so to do. The weight of authority seems to sustain the proposition; that the remedy against the vessel and the remedy against the owner cannot, in Circumstances likes the present, be united or enforced in the same action; certainly no case has been cited, or found by the court, which disputes the right of a libelant to pursue them separately. The Jessie Williamson, Jr., 108 U. S. 305, 2 Sup. Ct. Rep. 669; The Sabine, 101 U. S. 384; The Zodiac, 5 Fed. Rep. 220; Insurance Co. v. Alexandre, 16 Fed. Rep. 279, and cases cited; Hale v. Insurance Co., 2 Story, 176; Newell v. Norton, 3 Wall. 257; Admiralty Rule 15. 365 The libelants, if they have a cause of action, are entitled to enforce it. It would be most unjust to require them to await, without security, the result in the supreme court. The motion is denied.

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