40 F. 590 | S.D.N.Y. | 1889
I cannot sustain tRe respondents’ exception that the pend-ency of the former suit in personam constitutes a bar to the subsequent suit in rem for the same cause of action, though both suits are in this court, and undetermined; nor is that a sufficient ground for any stay of proceedings in either suit. In the case of Insurance Co. v. Alexandre, 16 Fed. Rep. 279, the rule that obtains in this country, it is believed, was accurately stated, to the effect that a prior suit pending is not a bar where the relief that may be given, or the remedies available, in the two suits are different, though a stay may, in a proper case, be granted. To the authorities cited in that case may be added Watson v. Jones, 13 Wall. 715; Buck v. Colbath, 3 Wall. 334; and the recent case of Insurance v. Wager, 35 Fed. Rep. 364. Though Dr. Ldsiiington once dismissed a subsequent suit, the later English cases sustain only a slay of proceedings. The Bold Buccleugh, 7 Moore, P. C. 283; The Mali Ivo, L. R. 2 Adm. & Ecc. 356; The Peshawur, L. R. 8 Prob. Div. 32. The fifteenth rule of the supreme court in admiralty, by implication, prohibits only the joinder of the ship and owners in the same suit. These are independent suits. No one has ever supposed that rule to forbid a suit in personam to recover what was not realized upon a prior judgment in rem, or vice versa. In the recent case of The Jessie Williamson, 108 U. S. 305, 2 Sup. Ct. Rep. 669, a collision case, Mr. Justice Blatchfoko, in reference to rule 15, says:
It “excludes the joining in one suit of the vessel and her owners; but it does not prevent the introduction into the libel of allegations as to the ownership of the vessel at the time of the collision, with a view to a proceeding to obtain such ultimate relief in personam, on the basis of a recovery in rem, as the libelant may be entitled to.”
If successive suits, upon the same demand, may he maintained in per-sonam and in rem, or vice versa, until satisfaction is obtained, it is wholly a question of practice whether the two may be brought concurrently, or whether the second suit shall not be allowed until the remedy in the first shall be exhausted. That question must be determined with reference to the convenient administration of justice. Rev. St. §§ 913, 918, rule 46; The Hudson, 15 Fed. Rep. 162, 175. Where the actions are in different courts, and either remedy may be sufficient, it would be oppressive to proceed with two actions at the same time. In admiralty suits, when both actions are in the same court, no prejudice can ordinarily result to the defendant from concurrent suits, since, in the usual course, both would be heard together, and the costs can be adjusted according to the circumstances, being in part imposed on the libelant, if that be equitable. In suits for collision the exigencies of maritime affairs would make inexpedient and unjust any rule of practice that would prevent the filing of a libel in rem merely because there was pending a prior libel in personam, or vice versa, since either alone might be insufficient to insure satisfaction. The libel-ant is often obliged to proceed against foreign owners, or foreign ships, at the moment that chance may bring them within the jurisdiction. The