Providence Washington Ins. v. Wager

Coxe, J. This is a motion, in an action in personam, by the respond- ent 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 entirety 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 like 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.