57 F. 508 | D. Or. | 1893
On May 28, 1893, the steamship Haytian Republic was seized at Seattle, in the district of Washing
The claimant filed exceptive allegations to the several articles in the libel and amended libel, relating to alleged offenses committed prior to the arrest and relea.se at Seattle, setting out particularly the proceedings had in the district court for Washington, and submitted with these exceptions a' certified transcript of the record of such proceedings. The ground of these exceptions is that the United States, having taken a bond from the claimant in the full appraised value of the vessel on the former arrest, and having •released her from such arrest, cannot have recourse again to the vessel, except for offenses committed since such release.
The point is made for the first time in the brief filed since the argument, in support of the libel, that the facts set up in the allegations cannot be raised on exceptions, but are available to the defendant by answer only. In admiralty, excejrtive allegations correspondió pleas in abatement and special pleas in bar. A party may set up a single fact in an exceptive allegation, or lie may unite the whole, answering as to all the facts, in an answer. Ben. Adm. § 3G8. The usual course is to set up all matters so relied upon in an answer. The exceptive allegations are, in effect, a special answer. It is immaterial what name is given to them. Courts of admiralty disregard mere technicalities. The circumstances of the case make it important, both to ihe government and the claimant, that the matters involved in this controversy be speedily determined. I shall not consider whether the facts alleged in an exceptive allegation must he technically within the knowledge of the court, but shall consider the questions presented by the exceptions upon the assumption made by both parties in the argument, that the facts alleged are proper to be considered by the court in the mode in which they are presented.
It is claimed in support of the libel that, when the claimant secured the release of the vessel upon the bond for her appraised value, he took it subject to all existing liens, and cases are cited which abundantly sustain that view. That there is no distinction as to this between cases where the vessel is held for forfeiture, and other cases, is shewn in the case of The Langdon Cheves, 2 Mason, 59, where, in a proceeding of condemnation and forfeiture, the vessel was delivered on bail for the appraised value, and after a final decree of condemnation the amount of the appraised value was paid into court. Afterwards, the question arose as to whether
In support of the libel the case of The Hold Ruccleugh, 22 Eng. Law & Eq. 62, is cited, as a case where a vessel was libeled in Scotland for a collision, arrested and bailed out, and rearrested in England for the same cause of libel. The case is commented on in Wolf v. Cook, 40 Fed. Rep. 438, where it is stated that the proceeding in Scotland was in personam. This is not material, however. Upon the tiling of the second libel, instructions were at once sent to dismiss the first, and the answer to the plea was that tliere was no longer any suit pending. And, besides this, it frequently happens that a party is permitted to bring a second action upon the same demand in different jurisdictions, but he is not permitted to have more than one recovery, as is attempted, or at least contended for, here. He is not allowed to split his cause of action, although the result aimed at is nothing more than the recovery of several judgments, aggregating, exclusive of costs, no more than the amount justly due. A fortiori, the party will not be permitted, by the expedient of dividing up the grounds of forfeiture, to recover the value of the forfeited property a second time.
I assume that the violations of law charged in this proceeding were not known to the libelant when the seizure complained of in this procedure was made. If so, the libelant may avail itself of this recent knowledge by amending the libel in the other district to include all the causes of action excepted to here.
The point is also made in behalf of the libelant that the bond given in the district court for Washington is not a bond," for the reason tha t it contains no condition, and was obviously intended to be given in pursuance of Rev. Ht. § 941, instead of section 938. The former section provides for bonds in proceedings in ran, in causes of admiralty jurisdiction, other than cases of seizure for forfeiture, and provides for a bond in double the value of the property claimed. The fact that the bond may have been prepared with a view to this section, and is larger than required, does not affect its validity, as to the obligation to pay at least that amount. The conditions upon which the obligation in the bond becomes absolute are contained in the statute. If, however, the bond is legally no bond at all, and (here is neither the rein nor its substitute, upon which the jurisdiction of the district court for the district of Washington can lay hold, all doubts as to the effect of the pendency of the suit in that court upon this suit might have been removed, without the sacrifice of anything on the part of the libelant, by dismissing sneh former proceeding. I am of the "opinion that the bond in question is in compliance with the statutes, and that upon condeirination in the district court for Washington, if the claimants do not, within the 20 days provided in the statute, pay the appraised value of the vessel into court, with costs, judgment can he granted upon such bond, on motion, without delay.
The allegation in the libel that the master of the vessel brought’
I have had some doubts as to whether the pendency of a suit in a court of the United States for another district can he pleaded in abatement of a suit in this court. The point has not been expressly decided. The opinion is expressed that there is no difference in principle between such a suit and one in the court of another state. 1 Fost. Fed. Pr. § 129. And it has been held in the United States circuit court in Wisconsin that the pendency of an action in a state court of Iowa, where sufficient property had been attached to satisfy the demand, was a ground for the abatement of the suit in the former court. Lawrence v. Remington, 6 Biss. 44. Upon these authorities, I conclude that no jurisdiction exists in a case like this, where there has been a seizure and a release on bond in the court of the other district.
The exceptions are allowed.