CHIESA 'V· .CONOVll1R .et al. (DiBtrict Oourt. S. D. Alabama. September 21, 1888.) IN WHEN LIE.s.
Rule 2 of the admiralty rules of practice, providing that the mesne process in a suit in per8fJnam may be a warrant of arrest of the person of the defendant, and, if he cannot be found, for an attachment of hIS goods and chattels, does .not authorize an attachment in Alabama, where imprisonment for debt has heenabolished.
In Admiralty. Libel in personam. The libel was filed at Mobile, while the vessel was there, loading for Liverpool, and sets up a violation of charter in not sailing on a voyage from Pensacola to Rosario. . It alleges that the bark was the property of E. M. Conover and John Doe, whose name is to libelant unknown. On showing made, the district judge made an order for issue of attachment of the vessel as such property. On hearing at special term, of motion to dissolve the attachment, it appeared that E. M. Conover was the sole owner, was wife of the present master, and with him upon the vessel. Pi/lans, Torrey & Hanaw, for owner. G. L. & H. T. Smith, for attaching creditor. TOULMIN, J. After a careful consideration of the motion to quash the attachment in this case, and the arguments thereon, and an examination of the authorities bearing on the question. that I have been able to find, including those submitted by counsel, I feel bound to hold that the order for the attachment of the vessel was improvidently made, and that the attachment was without authority of law, and should be vacated. The only authority for the attachment of the property of the defendant in a suit in per80nam is found in rule 2 of the rules of practice, which' provides that the mesne process may be a warrant of arrest of the person of the defendant, and, if he cannot be found, for an attachment of his goods and chattels. 'fhe attachment of the vessel is not authorized except where the defendant cannot be found, and then, where the warrant of arrest is authorized under the law of the state where issued, it should be in the alternative; that is to say, it should direct. first, the arrest of the person of the defendant,and, if he cannot be found, then the attachment of the property. My opinion; therefore, is that the writ of attachlueut can be had only where awarraut of arrest of the person of the defendant is authorized. Such attachment. can only issue where such warrant can issue,and be executed only where the warrant of arrest cannot be lJecause the defendant cannot be found. As a warrant of arrest . of the person. of the defendant is· unauthorized and illegal under the law , of this state, so is a writ of attachment, which is dependent on such warrallt of arrest... In other words, as the right to the writ of attachment on·the right to.hnprison for and as by law imprisonis ment for· debt is abolished in this state, it must follow that the writ of attachment in this case is without authority of law, and should be vacated; and it is so ordered.
THE DIRECTOR.
, 335
THE DIRECTOR. BALFOUR et al. v. THE DIRECTOR. (Oircuit Oourt,
n. Oregon.
October 9, 1888.)
1.
BHIPPING-CHARTER-PARTY-BREACH OF WARRANTY-ACTIONS-JOINDER OF CAUSES.
In case of a breach of warranty of seaworthiness in a charter-party, anaction, for the recovery of the go'ods shipped and for damages for the breach of warranty maybo joined.
2.
SAME-BREACH OF WARRANTy-RECOVERY OF POSSESSION OF CARGO.
The libelants chartered a ship to carry a cargo of wheat from Portland to Europe, and. when she was loaded, she commenced, from inherent weakness, to leak, so that her cargo had to be dischl\rged. Held that, the vessel not being seaworthy at the date of the charter and the delivery of the there was a failure on the part the ship-owner to perform the condition precedent to the contract. and the shipper WIlS absolved therefrom, and was entitled to recover possession of his wheat, and such damages as he may have sustained by reason of such failure,
In Admiralty. On appeal from district court. 34 Fed. Rep. 57. This case was heard on an appeal from the district court. The suit was broughtto recover damages for the breach of a warranty of seaworthiness of the bark Director and to recover the possession of 18,868 bags of wheat theretofore delivered to the same for transportation to Liverpool under said warranty. An exception to the libel for misjoinder of causes of action was overruled by the district court, (11 Sawy. 493, 26 Fed. Rep. 708,) and on the final hearing the court found that the bark was unseaworthy, and that the libelants might maintain the suit to recover P9SSeBsion of the wheat, and to recover damages for the non-performance ofthe contract ofaffreightment, which were a lien on the vessel. a. E.$. Wood, for libelants. FrederiCk R. Strong, for claimants. Before SAWYER, Circuit Judge. I
SAWYER, J., (oraUy.) Three points are made by counsel for the claimants and appellants against the findings and decree of tbe lower court: (1) That the possession of the wheat and damages for the breach of warranty of seaworthiness cannot be recovered in one suit; (2) that the libelants, having sold the cargo of wheat to arrive in Liverpool, cannot maintain a suit to recover p08session of the same, notwithstanding the repudiation of the sale and the return to the libelants of the bill of lading by the purchaser; and (3) the vessel was seaworthy at the date of the charterparty, or was made so before the expiration of the lay-days. The' first two of these points involve questions of law. Upon both reason and authority, I think the libelants are entitled to join the cause of suit for possession of the wheat with that for damages in one libel. They are also entitled, as against the claimants, to maintain the suit for the possession of the wheat. The sale in Liverpool has been repudiated by the purchaser, and the bills of lading returned to the libelants. The 'fact that the libelants may also intend to hold the purchaser liable in damages for such repudiation{ if'the law will permit, does not affect their right to the possession of the wheat, as against the claimants.