Gilbert v. Wright & Gowen Co.

ANDERSON, Circuit Judge. The contentions in this admiralty appeal are within narrow compass. [1] (1) The appellant contends that the court below erred in allowing an amendment to the libel. The libel as originally framed set up in the third paragraph that the master of the schooner had given a draft for $2,222.90 to cover expenses and disbursements, all of which (except $5.52 disallowed by the court below) are now admittedly the subject-matter of a lien in admiralty. On the libelee’s objection to this libel as too indefinite, the court allowed an amendment in the nature of a bill of particulars showing for what purposes the moneys were used. This contention cannot be sustained. The cause of action was not changed. The authorities fully sustain the action of the court below. Cf. The Corozal (D. C.) 19 Fed. 655; Davis v. Adams, 102 Fed. 520, 42 C. C. A. 493; The Gwynedd, 228 Fed. 177, 142 C. C. A. 533; The Holthe (D. C.) 249 Fed. 783; The Benefactor (D. C.) 242 Fed. 582. [2] (2) The second contention is that the draft should be surrendered and canceled as a condition precedent to the entry of a decree enforcing the lien. We need not discuss the necessity of such action, for it appeared at the oral argument that the origiñal draft is now attached to a deposition in the clerk’s office; that the libelant agrees that, as a ( condition precedent to the affirmance of the decree, the draft shall be duly canceled and so incorporated among the court’s papers as to remove any possibility of its hereafter being a basis of an action in personam. Cf. The Woodland, 104 U. S. 180, 26 L. Ed. 705; The Emily Souder, 17 Wall. 666, 21 L. Ed. 683; The L. B. X. (D. C.) 93 Fed. 233; Robins Dry Dock, etc., Co. v. Chesbrough, 216 Fed. 121, 132 C. C. A. 365. This is enough, on the cases cited and relied upon by the appellant’s learned counsel. The decree of the District Court is amended, so as to include a provision that the draft shall be duly canceled and so incorporated among the court’s papers as to remove any possibility of its hereafter being a basis of an action in personam, and, so amended,- is affirmed, with costs to the appellee.