13 F. Cas. 686 | U.S. Circuit Court for the District of Southern New York | 1853
The amendment sought goes to the gravamen of the matters in controversy, and introduces a new and different subject of litigation from that put forth and contested in the court below. It is probable, from the liberality with which amendments in pleadings are allowed in courts of original jurisdiction, that if this application had been made to that court, it might have been granted on some terms. But, even there, I apprehend, it would have been the exercise of very considerable indulgence to have allowed it. But, be that as it may, it is clear that I have no authority, in this court, to make the amendment; for, to make it, and entertain the suit, would obviously be, in effect, to assume, not appellate, but original cognizance of the subject matter of the litigation. The questions of the title to, or right of property in the vessel, or of the right to. the possession of it, all of which would become involved in the controversy, if the amendment be made, have never been before the court below, and, of course, have never been passed upon by it. In hearing the case, therefore, this court would not be sitting as an appellate court. The amendment to the libel allowed by the appellate court in the case of Houseman v. The North Carolina, 15 Pet. [40 U. S.] 40, and which was held to be error, was much less effectual in changing the subject of the litigation, than the one proposed in this case. Upon this ground, therefore, the motion must be denied.
There is, also, another difficulty in the way of allowing the amendment As I am at present advised, its allowance would not remove the objection to the jurisdiction. I am not aware of any case, or of any settled practice or usage of the courts of admiralty in this country, affirming the jurisdiction of those courts in eases where the title to, or right of property in vessels, simply, has been in dispute, and where the proceedings have been instituted to recover the possession, except between part owners; and I shall not be the first to set the precedent. The appropriate remedy is at common law, in an action of trover, or replevin, where, in the latter action, if the party seeks to obtain the possession in the first-instance, he must give security for the return •of the property, with damages for its detention in case he fails. Though the remedy is summary, and enables the person claiming the title to get immediate possession of the property, yet the rights of the adverse party are protected. But the proceeding in admiralty in a case where the title to a vessel, or the right to its possession, simply, is in dispute, and where the vessel is seized in the first instance, and taken out of the possession of the adverse party, is harsh, and may frequently lead to abuse. [There was an instance before us at this session, involving a case of grievous wrong, in which the rightful owner was deprived of the possession and use of the ship, and is still, and where the libellant was a man of straw, and the owner of course rem-ediless as to the loss of the use of the vessel, besides the heavy expenses incurred in the custody and care of it pending the litigation. We refer to Erlen v. The Brewer [Case No. 4,519a.]
As I have looked into the whole of this case, and concur with the court below that it had no jurisdiction, I may as well dispose of the case finally, and shall therefore affirm the decree below, leaving the party to go before the proper tribunal at law, for redress.
[From N. Y. Times, Oct. 10, 1853.]
