Livingston v. The Jewess

15 F. Cas. 665 | S.D.N.Y. | 1854

HELD BY

THE COURT (BETTS, District Judge):

That though a stipulation to respond to the final decree be given on the discharge of property from arrest, still the res is not regarded as discharged from the jurisdiction of the court, so as not to be reclaimable on the same process, if the equities and rights of the parties demand it. And accordingly the court will order additional sureties to the stipulation, or re-arrest the property to satisfy the lien upon it, upon proof that the libellant is like to be prejudiced by leaving it on the bail substituted in its place. But there is not equal equity in favor of the stipulator to authorize his discharge from his undertaking, on restoring the property to the custody of the court. And it is clear, upon the principles of the admiralty practice, that the stipulator cannot do this at his option (Lane v. Townsend [Case No. 8,054]), nor can it be done by order of the court, merely at the instance of the stipulator and for his relief. He is regarded as voluntarily having made a conventional undertaking with the libellant, which, in the ordinary course of an admiralty action, concludes him from its conception to its completion.

But that another element of equity has been mingled with this case by the re-arrest of the property; that the object for which the stipulations were given, viz., that of allowing the ship to be employed in her appropriate business, was frustrated by the act of the law, in no way promoted or concurred in by the stipulator; that the claimant was deprived by act of law of the benefit of the discharge, and that deprivation was so nearly concomitant with the discharge itself, as equitably to operate as a revocation of it, particularly in respect to a mere surety.

That if the stipulator, immediately upon the seizure of the vessel ^n August 10, had, upon that fact, applied to the court to rescind his stipulation, the application must have been granted from the manifest justice of not fastening on him, as surety, an obligation, when the pux-poses for w.hich it was entered into had been intercepted and defeated by act of law, and when no legal or equitable right of the libellants against the vessel would be changed or diminished by SUCh (1íoo^n,.o-o

That as those rights and equities remained in the same position when the petition was presented, the surety should not lose his claim to relief because he omitted to ask it at the earliest day.

The order therefore is, that the petitioner be exonerated on paying the costs of this application.

fin 1 Ben. 21. this case is published as a note to Ike Empire, Case No. 4.472.J