the tide so easily that no danger resulted from the bontact. Here. a blow was given with force in the side of a strong boat. There be. a decree ,for. lib,elallt·. with an order of reference to ascertain the' aiborlnlhr'tlie ,,':,' , 11 r j:
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"TIi:J(HuDsdk Ail,)' :
(Di8trlct COfl/l't, S. D. New York. 1. COLUSroN-SEVEItAL VEBSELS-JOINDEIt m
February 7, 1883.) ONE SUIT.
Where several vessels are alleged to in JpCl'USllig a c,ollisli>U by property of a third. J,.. iu.3"reli.. ¥?l!l by the lattei' to whicb recp;yer" hIS, aJI In ,fault shouid .bl' proceeded as dM'indltufs·to: aV6id J h1ufbp'nbit'j of' suits, "lind to enl$ble the damages to be 'jnstly' APJlortion-ed lljmbllg'tAlose liable,law In admiralty. 2, ,8.A)f]!j-oi,mto, ":ijYj , , one 'Y;lIuelpnly,it 11 , ,the cause, upon the , ,tlon'Oftll.t,. 'Vessel sued, a1re,tbflthe'othei V'filIsel to answer for its :sban :l\o,t>:lLtb.e'dlmJ≥,;,' J.t 1,,1. 'i',:'" (,_, '. :,ii,:Hp,4erthe t? an apPortion. ment of Jhe a.Blllages between Hie vessels liable to thIrd partIes, in a case of ;collis{on,'ie a'sul'lshititi'id rightwhidhcannotbestiffel'ed to'depeJ;ld upon the ;: ,ca,pric$\, 'or the in. eulng one vessel only.
IIi. cases not provided f9r '»1. cOlJrt rules in adn:l.iralty, it is competent district collrtid'l'egulate its own practice, andtoallow remedies aecording<'tothe of admiralty procedure,.as new exigencies arise, a8 tlle due adm.inistr.ation of justice. Ii. BUJE-BRmGmG Pot\RTI!JllJ.'" . , English act of 1873 it. is the constant practice, at ihsUmce'6f tile defend&:nt l to"bring in third persons as parties to be bound by the jndgment; where they:have,aeom.mon interest in the subject-matter of the l\tigation, 00. be determined. 6. C.;\8ES. .
4.
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,
Collision cases in' present an aggregate of features which make theiD. suz' genen8, 'and the d'ue8.dinfuistratibn of justice renders it essential anti expedient m'this:class,of; OIlS8\! tha1;; the liability of all persons OT involved detennined in single Bction,rathllr than in successive wdepengent suits.
Motion to Bring in Another Vessel as Defendant. McCiJIt'thy; fOr UMlant. "r Benedict;"T-ajV&;' Bened-ictjJ'for the . BROWN, J. The libel in this casews,s filed against the steamtug Hudson to recover damages for an injury by a, collision to the
Ilbelant's barge (whtcl'l" f1rl tow' 'ithe A:Packerl" The latter tug'nof ili the and i lieing alleged' by the claimants of the Hudson to be chargeable with fault'ci.:liiuib" uting to the' collisioh,the fraying that the E. A.Packer may in' 8S8i party to the'sdtfori,'in brder that the damages' may be apporiibnedbetweeti tugg, 'as \ioUld have ,been' done, had; the E.: ;l>Wn':: jb1ned' as 'a; t pafty "arid adjudged in f a u l t . , ' , ! . "",::i The,motion is opPoBed by the libelant, Ilotmerely on the gfoundo!' laches, but upori the brotuler>grooild thltt,''if the' claimants na"e' any' bY 'their' right to contribution it, must .be against the E. A/Packer after'paymgthe; and thll.t, the' court cannot 'compel the'libela-rlts'i'to slie parties'wh'dm,thej- dd not deem: in fault; not bring in an'6ther tessel' 'fl:t ithe'instarice'oflhe' owners of the vessel sued ' illlportancesince ;The question 'invblved is on& 'of the decision in the case of The Atlas, 93 U. S. 302. This'court<haa' had ftequent occasion, to regret itsownadjudiC'ations, imposing orie vessel alone the whole'bUrdeh of the sel! 'not a partYfsppellired:tobe equally; arid sOD1etimesIriore, in 'fault; H applica.tionslike this'can be gratited',:then' a speedy,oohvenient, and etIectualremedy will'})ie provided, wherebythernle inadtirira1ty in collision cases which the damages :betweeri two vessels, which are bothiidault, oain be equity will beadmiri.. ' iatered in the"sense of the admiralty law., ' Heu'ch applieationsoannot be granted, then this rule of the admiraHy is liable, to be: defeated, ot' 'grea,tly embarrassed in! its efft:lctual and praetic8:lapplication, either through mistake,'collusion, or the arbitrary caprice' of'a.ny libelant who chooses to' alie one vessel only, and to insist on rec6tering 'his whole damages from that vessel alone. For even if the latter, after being found liable, and after paying the whOle loss, would have a legal right to recover contribution by direct actionagainst:the other vessel through lilubrogation to' the libelant's lien; stillthisremsdy would in many cases become practically worthless through the vening delay, the loss of the other vessel, the accumulation of' stiperior iJiterveningliens, or herah'sence from the jurisdiction; while such', a remedy, if still available, would involve a trial by the court of the whole case de novo. If, therefore, in collision 'cases, two vessels bleto a third party have iIi· 'adrrdralty' any legal{'right of oontribution, inter sese, for the! payment: of. the damages, it is mattifestly' nidfa' effectual and more convenient to bring both into the cause at t. · ,, , ,'
of
164 the outset; and if the libelantd,oea that, to permit the vessel sued to,cause it to be done, if it be ,coJppetent for the court to afford that reme,dy., In liqeltmUn such cases recovers of the vessel sued .alone only, hl,l.lfhis daJpages. PJ:his rule, 'first established by Pl;, ,!tuslIINGToNip the caaeof,Z'he Milan, ,Lush. 401, has been repeatedly.. has lately, (ieZ8) affirmed in the court of appeal in the 'case of The City of Manchester. ;4. R. 5 Prob. Div. 221.. applie4in this country. in-the district and cir2,lfit. 4tla"A: Ben. 27;,:1.0 Blatchf.· 459; The City. of Bar,tjord, II ;):but pD, appeal to: thesuprePle court in: Atlas.: 9'9.°:_ ·;S.)102,wherE3 only gne of two vesthe;, c.aElfl) liable,,'Yas ,sued,theJlecisioIl of court below wasreversed, and a deq;reedirected in . . of the libelant for his entire damages against the vessel sued, on the grounq...that each vessel, as a wrongdoer, must ,be held lip.ble to tllird parties .in solido for the loss., , ,,,' ;, however·· Wits not qesigned to affee.t, and does not affect in apy.<l,g,re,edhe righi.of the ownet'B' of the several vessels liable to halVe among appor;tionment .of the cla.ll).ages all the, part.ies barot'e 1he, OOUl't. The rule iIHhe admiralty in cases as,.is well known, .is in direct opposition to the. rule,of the common law. By )atter,if the plahltiff .be guilty of p'e nothing; .,while, in adPliralty, the damages, whethex tq[th(;j ali or to the cargo of the' vessels in fault. And tlla innu(lentow,ner of the cargo, 91' pf a tow in charge of one. vessel, sUeS; ""nd rec,qyera against both' vessels, the libelant cannot reco!'era ju.dgmellt in 8Qlido against. poth for his whol", damage, with So right to levy 1#s execution in ·as at commOn law,but only a judgmenHor a moiety of the damages against each with,an alternative right ofrecQurse against either for so much of the moiety to be paid by the other as .he is unaqle to co'llect from the latter. ,.This principie, first sanctioned by the judgIUent .of t4e supreme court in the c.ase of The Washington and the Gregory, 9 Wall. 513, 516, :was afterwards, upon full deliberation, reaffirmed in the case of . The Alabama and the Gamecock, 92 U. S. 695, and has ,been repeatedly in subsequent cases. The Vir!l.iniaEkrman, 97 U. S. 317; The Gityof Hartford, 97 U. S. 329·. 330; supra; The Givilta, 103 U. S. 699. In case of 7[he Alabama and the Gamecock, supra, the distrid,
·,.
THE HUDSON.
165
court had rendered a decree ,agaitlstboth vesselsfot [the whole ·dAm,age in 8olido.· The circuitcourt reversed this, and rendered a decree against each for a moiety· only. ' The supreme' court reversed both, and directed a decree for' iLmoiety against each vessel, with an a.lternative provision to the effect 'ab6ve stated. ' No more express affirmance 'Could be ma'dlfof the legal right of the owners of the several vessels liable for the same collision, to have a.n apportionment of the loss among thems,elnswhenever, both are before the court, even as a;gamsta libelant without fault; fortha court reversed the'decrees belOW for no other purpose than' to give effect to such an apportionment, so far as it could possibly be done cOllsistently with the'libelant's right, as against both, to make sure of the recovery of his whole 1088. The same principle was' applied in this circuit upon an appeal heard by the chief justice in the case of The Eleanora, 17 Blatchf. 88, where two libels were filed against the steam-Ship for accillision,-one by the owners of the schooner Transit, the other by the owners of the cargo. The cases were' submitted to the court on the same evidence. Both vessels were found to have been in fault, and the'damages in the schooner's suit were apportioned; while the owner olthe cargo had judgment for his whole damages against Eleanora, which he had sued alone; but in order to compel the schooner to pay the onehalf of the damages in the latter suit, as' she was' "eqUitably bound to':do;" though she was not a party to that suit, the court decreed that'the Eleanora should, -inthe'schoonefs 8uit, be credited with the one-half of what in tM ather suit! she waS obliged to pay for the IOS8 of the cargo. The court say: ' ' ·. ; . I"
"Having all parties before it, the court niaydowhat it would done if there had been but one libel; that is to' say, divide the damages o{the collis· ion throughout between the two· 'colliding vessels. * * * The fund longi.ng to the Transit growing out of the collisiQn is in court, and no injustice is done by using it to reimburlle the tor what she has paid for the Transit on account of the mutual of the two vessels."
These cases show how firmly established in this country, by the highest anthority,is the legal right in admiralty of the several vessels, liable for the Bame collision, to have the 'entire loss and damages apportioned equally among them, 80 far a8 such an apportionment can be made without injury to the libelant, whenever the par.ties are before the court, or whenever there is any fund which the court can lay hold of and make tributary to 'such an apportionment. The right of contribution is thus affirmed, it seems to me, as a substantial legal
16p rig,b.t, ",ndexpedient reII\-adies. Ill, ,ejJ,eci, ;the _ ama,ritime lien upon, each for, his whole damage,so th,atpQth are lia.ble jointly __ principals, ,,betw.een t.l!emselves, the several of sur:eties for each other vessels liable are virtually ill)tpe the paYlUent by; e.a.,cll' ,of the damages; .and each vessel, like in ,a legalinte,rest in the libelant's ,uppn other, that court must by its protect tbis iJ:l1ierest- .wllanever the parties are befpre it, and onfailu,re to do so its decr6(J' will be reversed· .From this ,well-settled rec})gnition IIind eJ;lfQrcement of a right of Q9ntribution a. subJjltantia.llegaJ right, when the parties are before the court, it would seem to result necessarily that if only OJ;le vessel is"sued, iS6qllally liable, either an independent suit forcontriQutjon Dlust be a.Howed to the la.tter, or else the other vessel into the original cause,if that can be uone withou.t must Qe any to the. libelant. It would be a gr,,)ss andmaly to ,say that t,he court must, by its decree, recognize and enforce a right of apportionment between several vessels defendant. if they all happen to be parties, but yet has no power to bring in one of them absent, or to afford a several remedy against it. If the right of contribution depended wholly upon the libelant's happening to sue both .vessels instead of one, instead of being a legal right it would be but a mere accident in the cause, dependent solely upon the libelant's qption. ButI,cannot for a moment conceive either that the supreme court would guard and. enforce with, so much care a right whioh depended upon-accident merely, or that so important and valuable lin interest as the right of apportionment in collision cases, where the pecuniary interests involved are usually large,-often amounting to tens or even hundreds of thousands of dollars,-can be suffered to depend upon the arbitrary choice of the libelant as to whether he will sue one or both vessels, or upon his mistake or'misapprehension of the facts in supposirig only one vessel instead of both to have been in fault;a!ld,.still less, upon bis possible collusion with one of the yessels to.throwthe whole burden upon the other. The due administra_tignof justice and the reasons for the rule of.llpportionment forbid any such result. "The moiety rule," says BRADLEY, J., in delivering the opinion of the supreme coud in the case 9f The Alabam(h 92 U.,-S. 697, "has. been adopted for the better distribution of justice among mutual.wrong-doers." Judge NELSON, in The Catha1'ine, 17 How. 178, says "this rule is most just and
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,;: TIlEl HUDSON. ;
167
equitable; 8.sbest' tending anllrfigila..nceiinitiaviga.'tIOn-;" and' Judge DRUMMOND adds; intheoase of' The ::8wtttij' 6 McLean,''2t5, that undedhis ruleless effort,. and .1ess,temptatioIi·/by corrupt and:llnfair Dieans t-omisrepresent 'a.nd' distiott· the ,faots!" Thesarnesens8,ofjtlstioe: and,the saMe Mnliiderations,ofpolicy' led to the i ad0ption ofthisi,rule; 'ibM; which carefully enfOrce it:'W1renever:theparties are require that if! aU· 'the parti'es are'not before a separate suit for be allowed, some 'wiJ,ybe brought intGthe tbls}ibetter distribUtroUOfjll"tice" may be effected. . In 'the ,Napoledn, 8 !Wall. Jr. 58, · GRIER, J.,SliYs:' ' : . Ii 'J:'1 .: l
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.. If, as between tile: 'steai:n:-'boat, latter bl'iSbeeh partially 6r entirf'ly in.4att'l1J; the 'Owners of theE1'lterprise mllofhave ('I:!e., against theNa;polePD) for the balf or the w,hole "()f ;th8' daIlDageB' recovered. by
the li,belants."
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It is objected "that at common law there'isl1o,oontrlbution among only! :wholly1biapplicabletb collision . cases in admiralty, I '81S ha.ve' seen; b.at'lthe rule is too broadly stated, and is subject to itriporba.n.t'quaI'ifieations even at' cGmIDon law. In Arnold v;' OlijfO'T'd,2 8U'tnlll :238;, STORY;J., states the ruledif.ferently., "Among tort-feasopllj l' he 138YS, . :ktiovlingly there can be no.,eontribution/'· This rule dorihtles's applies to 'persons dir-eotly particip'ittingin or authol'iz.:itlfrany'Willful trespass, or any known wrongful aots;or 8c-ts'{)bVioliSly Ofa,n unlawful chM'acter, and to actions involving:rnoral tnrpitude,ot incurring statutory penalties. ",'\f'etryweathe1· v. Nixon, 8 Term:R. 186; A'UO'I'n'6]J General v. Wilson,: 1 Craig & P. 1, 28; Miller v.llenton, 11 Paige, 18; Peck 'f/. Ellis, 2 Johils. ,Ch.. 131; Andrews v.MurraY, 33 Barb. 854'; Weh16v. Harland, 42 How. (N. Y/) 399; 410. But in Adamson v. Ja'I'Vis; 4 Bing. 66, BEst, C. J:, says: "The rule is confined to cases "'here the person seeking redress lnust be presumed to have known that hewa.s doing an unlawfUl act;" and it seems to be the settled law tha,t in caseB of quasi torts only, not involving any moral tnrpitude ot any personal fault, or 1Vhere the acts are not obviously unlawful, the parties are not presumed to have known they' weredoinga;ny Wrong, or' where their liability is by ifuplication of law merely, then' 'c6ntributionor indemnity will be enforced. Thorp v.'Amos, 1 Ba.ndf. Ch.;26, 34; Wooley 'v. Batte, 2 Car. & P.,417; Adamson v.'Jarv.is,4 Bing. 66; Pearson v. Skelton, 1 Mees. &W; 504; Bett v. Gibbins, 2,Adol.' & E. 517;· PoWt.r
or
·16S
FEPEnAL .nEPORTER.
v.Hovey, 19 W. Rep. 91l6. It is wmecessarytodetermine here to which. of these classesQf cases claims for contribution in a common law action"growing oqt of 80 col1isipn, should beheld to belong; or whether .. collision eaSElS are materially distinguishable from both by reason of the fact that the acts of the two vessels for which they are held liable are not joint, but wholly separate and independent of eaohother j each vsssel being held liable solely on accov.nt of its own Blct· of negligence. But it may that,considering the fact thllot Qol1isiona are seldom the result of any willful-wrong, the divergence between the admiralty and the common Ut.w is not essentially so great as is sometimt:ls supposed. It is urgfld that ifth,e vessel sued. wone has any right of contribution, she should be left to her own suit therefor against the other.. yes;sel or herow-ners, after payment of the libelant's damages. But the. circnmstaooes attending colliaion cases, the questions involved in them, and the matters affectingithe remedies available upon them, are so peculiar that they constitute, as it seems to me, a class of cases sui:gert.eril, and recquirethat, fiO far as possible, thedetermination aLthe qllestion of· the liability of the vessels concerned, and the reUef to which either ,may be entitled, should be had in a action, al;l<1·not .by several· independent suits. In the first place, th,eseoastls are wholly different· from·,those in which the liability of principals s-qreties is acknowledged, or based on express CQntract. The queetion of the liability of both, or either, Qr wl1i9b one of them, is the principal question to be determined, and in I\lost cases this can only.be ascertained afte;/: a careful hearing at the .trial of all the witnesses from. both vessels, as well as suchadditiona! testimony 80S can. he found. These trials, from their intricate and the circum. and complex patnre, the character of the stances QfdQubt usually attending collisions, often in darkness,fog, or storm, are as a class among the most difficult to determine upon the facts. Though the witnesses from both are all heard, yet if but OIie vessel is a party, the determinaUon reached after great labor wOl,1ld not be binding upon the other vessel in any subsequent suit against it. This would be: the case whether such subsequent suit were brought by the libelant, who, if he fail of recovery, or of ·satisfaction in his· suit against the first vessel, (The Marshall, 12 FED. REP. 921,) might afterwards sue the other, in which he' is again liable to defeat, as in the case of The Enterprise and the Napoleon, S Wall. Jr. 58; though<having 80 perfect right of recovery against th,tl, one or ,the <;>ther, or whether it were brought by the first vessel
169
sued, after being held in fault, to recover contribution from the other. If such separate suits are allowed, the court might have to decide the same question as to which vessel was in fault, in three ent actions; and each time try ihe whole case de novo: first, in the libelant's suit against the vessel sued;" next, if defeated In:that, iIi his suit against the other 'Vessel ;f itnd if that were illeld liable, then, lastly, in a suit for contribution by the latter vessel against the first; and in the last suit the decision might be unavoidably the reverse of the first; for in none 'of these separate suits would the evidence takeri in one be receiV"able in Enterpme, 3 Wa,II.Jr. 58, 64.: The court ought not to be liable, as a rule of practice,. t'O he caned.' on to try and detert.rlne actions '6f this twice thrice npon the'facts,inas many independent 'suits. The 'testimony oftha wit·: nesses,morebvei; whose lives lne chiefly upon the sea; \is often diftV cult to beproctiredt :, Froth their roVing chsracter, aft-er a all trace of thbniuis:often 'lost,.'anda subsequent 'slii'll for 'contribtiti6n tria:l (Of the,*htile' question lof'na;bility:/:k novo would have little chance'ofjtisti6e'tlirough the loss of idence' on tlie one 'side or''the 'other. 'A vessel, also; which'is the jurisdictiontolaay andavaifabIe to answer for her!liability,'may be gone td-morrow and never teiurn;or, if she does return, may be so burdened by Ister· maritime liens having priority; ali to no longer rssponsible; while, if, the liability of her ow-nersin perBond.m should be lookedto,the act of 1851, limiting liability td 'the value of the vessel. itself, 'would often, after a short.time, render this remedy wholly unavailing for purposes of contribution, through her loss, or the accumulation of liens upon: ber having priority througb " her subsequent navigation. . And.even if the remedy against-the other vessel, ,or her owners, for oontribution, were still availaible, and the same witnesses were procurable, thE! liability to perversions of tho truth in any subsequent snit after the decision of the court had once been made known upon the facts of the case, would be so' great, considering the witnesses in such cases; the difficulties of the trial would be so greatly increased. through the. varying testimony; a.nd contrary judgments as to the same collision would sometimes be so una'Voidable,that the restilt 6£ the practice of admitting Successiveindependent suits the same coUId ,har41y fail"to discredit the administraiion of justice. . '. In collision cases i in admira.lty:asU seems'to me; '8.'C1a88 of oaaes 'by themselves, Mld evenihn -iridepend;'; ent suit for contribution after paymentw0uld lie, still theceurt ought J
170: for abpve ,if not reqmre, BiUY , such Wi be spugtltsQ;aij and decided with the orig, ' ," inal cause. J:n actioIls" doubtless, a plaintiff Cannot ordinarily be compelled ,waue 8t and as no relief is given by a cODJiIn.Olll-law judgplent between and as a plaintiffm,ay full either jud,gment debtor, such a judgment be of benefit to and the introof is several, has, therefore, neV,er Jl Abb.1l0 j Webster v. BQnd, 9 , ',; , , ;;Bu,t in beElIl ,ot);lerwiae j and, that conrt has al-, Wl.tys had and the daM to all necessary parties the at instan,ce ofeit}wr party, or of its tO'be oWH-motign. lll;111l,ainti,ff,is npt ElIlforce even Ierights t,,?,tbe pr.eju4ice, of ,the Where plaintijf legally, demand" t4e 0W:D,61= of one of, first to for tW\l funds, Uledeto ba;ve c th:6f,otihar applied to the debt. fenda,nt The frince, 1 -461, j St5>ry" ]}Q.§§ 68S, 638 j Ingallay. !'. ,
iII, the, .re,cpgnized:rlght.Qf;coqt#,b;utign,are StQl;J,. QnEqubtj1, PleaqingJ! rJile.; j 1m. he says :'" '.: i 1(I :
allper$ons interwhom there is Judge this,gelleral ! ,
appLy to persons)who are qrdinfll1."iJy.. $J1ey millst, be,
purV9se, if it'Sqoultl arbcrig'the'niselves:" ' .
and ,a, ',! " ' '
by a common charge not onlyJor thl'l purtitle to it" but lllls0 for the dis,ch,arge, " ,
,J-l':'
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,se,<;tiolll:iW .b,e.says:, ,
,"
!. ,
the defendsntsactuallybefore the ,eourtmsybe Bubjected to' undue' inOf}m dll.g!ll' of lOSl$o,Ii tQ fl,l/iUrll a li,l!'bilityuI,lder the, it the, before ,Will,! ,s sutficientground to , fotce-tlie rule ot makmg the -absent per,sons parties." ·. I , {,)
l
; ,.':
,fl'P.fl of
to, the class ,y .7;afj.gu1't, 4:: '
·.l'U "lIowevei':numerons: t!iiJ in the'llubjeetof .a 8lliflrtlu!y must all be made partills plaintiffa.or dl'lfendaptft. in cree may be made, it being the CI)Dstant .aim pt to do complete .. .Bub.ject, deciding upon settling the rights of all persons interested in the subJect!'
See, aleo, Story, v. Livingston, 13 Pet. 8,59, 37'5. And the same rule formerly applied in equity to joint and several contracts. The eteditor was required to "bring allth:e debtors before 'the court, principals as· well as sureties; for no account. taken would be binding uponanabeent party, and consequently no complete dethe debtors are entitled' tathe aesistcree could be made. ance of .each other in/taking· the accounts,. ap,dwben one has paid Inore than his share of the debt I he is entitled to 80; contributiQnfrom him who ha,g:paid' nothing, or leBS than'hisshare;8.nd by making all the debtors patties, the cirouity of another suit for' contribution is thereby.avoided." Pitman, Prill. & 125; Stoly·,·Eq. Pl. § 169; Eq.l.Q8. Thierule, deClared by Lord.HARDwWKE in Mar),ox v. Jackscm, 8 Atk. 406,andreaffirmed, by.Lord ELDON rin.oockburn v. Thomp8on, 16 Ves. 326, remained thepllactice·in chancery until modified by a rule adopted in 1841"(see 1· 8'1'1,) and by in 1845,:8.s role 51 in equity, the supreme Gonrt in Olar.ke, 3 allowing·· in tbe:secas8s, a . several action.: Swanst. 147; Haywoodo'\T.Otley,; 6 Madd. 7,8; 1 Siin. &·8.246 ;C8Il,ert,Pa'rtiee, 235. . 'The generai·rule in the presence Qf' all parties interes.ed,. was 8stablish'ed i foto- :convenience intlaeadIhinistration' of Wi,eri'v. Black1Jy, 1 justice, (Oockbttrnv. Thomp,on, 16Ve8: Johns. Ch. 487,) .:and the .modiftaation'of it lin eases of joint and se'Vera.l 'contracts w8.s;'adopted,doubtlese" beeause the for it in -these oasee were notdeemed;urgent,ai\d because -in ..such oaseethe liability of several obliSOl'6"pririciipaJs or being usually in dispute,&'.separateJSUit forcontributiori would,not, ordinarily, be attended with any Jspeoial difficulties. .The' exception, however, proves the geneJl8.lrole,: anddn &ll other 'C'ases in' eqnity· the ruleie that where there is acbmmOlLblirden to: BlWeml ioughtin equity to <lontribute,aU whbare :within ,thezjuris4ilietibn'and solvent must be madeparllies, liar: the' eiiforcement .of contribntionand.:to a.v6id circuity of;actron. ,Adams, Eq. · . The same considero.tionsof eonvemenootwhich·led·;to"th:e establishJ. moot oBhe genera.l·rulEirin'eqtnty, and·toritsmodification·iil:tbe ease of expresB eontracts,o:fjoirltl 'Bind. several liability, would·seetn. to me
172
FE1),Il:oBAL I »EPOBTEB.
to require this court in collision cases, for! the several reasons auove stated, to a:dminister' relief, so far 'aapossible, in the same action, rather than 'to entertain separate suits. In equity new defendants might be introduced by the complainant by an amended or supplemental bill. while the ordinary course of a defendant at law seeking relief as'tothe same subject-matter against other persons' not defendants was by a cross-bill in equity. filed by himself against the plaintiff, with the additional defendants desired. Mitchellv. Lenox, 2 Paige, 280j Livingston v. Gibbons, 4 Johns. Ch: 94; Enawo'r!th v. Lambert, Id.60oj M-eGowan v. Yorks, 6' Johns. Oh. 450; Websfe-r. 'v. Bond, 9 Hun, 431, 440. . . A filed, by the' O.wneraof the vessel sued against the ,originalrlibelant· in and t):.le 'a,ther vessel in rem" .would be t?' such equity., .But this improper,joinder of parties, under ,ruJe·1o of the supreme court j nCl1', ifsu¢h ·. ords!Jf.libel permissihle,do I perceive in it ,any· adYl\n.tage overa'direct introduetibnof 'tJ)e piner veasel into the cause OD the petition of the one sued, to whieh,thElfEl is no rule opposedvand if:the!.ewere, twosnch"'suits by cross-libel they would be together .and practically cbnsolida.ted· .It is qMstionabll:'l coold properly compel the :libelant,; through a :stay of proceedings, to: add another vessel as defendantiiconEi.idering the deeree'hti the·ease.of 1'he Atlas l$inc6.inthat case, the district court gave the 'libelant time ttl, bring in)the Qther .vesser,ana·otfly after her bad so gave judgment for, 'half 'the :damagesi(tI: BeDl.l 38.;) qyet, ·Dotwitha.re.nding thiS'fa.ct. the. $ltpreple :couit..heUl the·libelantl-mtitlsdto l'ecoverhis whole da1llage jas -stated. 'ItJ,lS jpossible.ilo. toling: !Was, mtendedin 'reference, to the ;power .to.s1aYrproceedings:unti,l the ·libala.lit should bring in t.he other vesseL order against the libel-lillt. He: iaJrequireddo-;¥eriij!;his·J!b,el.,,,,Iid it: would lie impl'opet to .order him ,toiairlend it,:atdiherinstanoolofthe Aefel1dant,by ,ment, of [Which ,he'dOBS' Dot; ibelieM6; truth of· wbieh, ,as in ,the h&d'tlniell:.:, tYomo+er, I,lisftheiintroduetioD'oMhe .additionaL.party is'fobiha berie.ti ioft thendefendant·; vessel, it should for ,costs. and damages, 'alII141upon,her' stipulationS' tOI.helihelarlt ana ,to,mhe other;vessel. The propst S'emedy;whiciri as seems tt6,me, iUs entirely.eompatent to,the couriltolrofford;·is'1lo'iIlsuEl'prOcesiB· in tlie,original aotion for,the -arret st.JOfIthe. other valllsel, tip,Oti )the .pAmtion, of .the owners of the vessel .aue(t" setting:forth. be ·required
TBE BUDSON.
178
iIl the original·Ubel, the· fa.,ctsshowing" the negligentie'·· of' the. biher vessel in. causing the.collision by which the libelant had sustained the damage claimed in the 'Such petition wbnld be; in. effect, Bupplementallibe1, though filed by the cllibnants; and· the 'Claimants of the other vessel arrested would be required to make answer as respects the damages alleged in the libel, and the caus'ewolild then proceed to .9. hearing, and a proper decree be Diade as respects all parties. In'snch cases there would be no question of the jurisdiction of the court as respects the since that would exi,stby rea· ,son of the maritime lien of the libelant npon her, asset fOrth in the alldjof thepeuderibyof the cause cuqining tbewholedamages agaiq.st the vessel sued 'alone. The legal' interest of tlielatter, in hfi"lng the libelant's lieritipon ,the ages for: protection; and partial'indEhrlnlty'irithe stdt;· Jsrtfficient, reasonwhythe conrt issue its prd. .c'ess)to is one .. In ' this ,course of tne. a4miralty, apdwould ditfei-:ollly ih awarding further'piocess upoh tJlE{petitio:n ofa ilefehdan1i1nstead of'a' libelartt. , Thete-is: nb ques,ti'6t1 thai ilie coprt, would giant :'further, procesi!' for tbe.purposo'clf 'bringi'ng 'm'theotJ1er ves,ser 8J itli.eJ'iristimce of' the libelant, lipon tm hls1 libel;'idiowh1gth'e''fa,ultof the secona veSsel; 'and there 'is nti'ttfre'Ofthinga;'whY it i's not1equa.Uycoril. to the. cOUrl;upbn forth sI,rliilarll,ddfttohal fflCts,tg .simihtr' .tIl'e CfeferidaI1t has legal right ntid8i 'Protected;." . In patties stithd' before 'the j:feaich' should &ucb rigHt. astheothet' tb inyolte anjradditlo'nitrptOdes8 which may oetequisite in. the cause, or for, 'rights of, either. ,.' ,, ·1 find 'the opitii'on of 6durt iil: ihe of to' ,(jn l£lie 'i!ont14ty, from ft,' , t this kllld \yere ll,8, the result of" 'deciSion; and of I ' 'At
a
cas,e
nle- patty -served may have procesif tocottillet .the ot'heI ;to and,'tespoila\18 the 'ii6t,,·," i%in
U;',
,::
.petItion At the 6ne s\led: wlIstl,le of :procedure,wblch nitttrailly oc6tirred'lto thhld ot fua;t able' and'expenenced' jhdge; ..
the,
of analogous at of the derElfqrml!,,j.n,the practice of the .'conrt.s .are gireotness in·, the, modes of relief; always been the sP!'1A1aJ ajUl of Qom;tspf admiralty. Und,f1;t' Erpcedure, a defendant cannot pr,dina?=ily, ,bring in in',order to obtain relief aga,jnst :pilnin, a, cqn;u:r;t9n-law;cau.e, ,because a action cannot, be eqw.table one, (Sc!,'wyerv. Ohambers, for 11 v.Bo.nd, 9 HllD,.437;) it is different in equiat ItJ,w, an is desired"and table ll<qtil;)J1l'l; .and whexfl billiJ;l..ehtmcery must formerly have been filetiby the thE! same relief .is now obtained by the, m<jtipll of the defendant sued· . prooeBB9f, L- '. court is. ' . .' . at . the ,defendant's in'. '. , Rr,O}lgpt i,n a,8 a Code, § $20. " ,-\hat aJ4!punde,r earlier statutes j and now, it, ia pr,ovided generally 3):that ..every thereof. in respect to any equitable estate' oq'mht.. pr. %patter oCequity" all ,sucQ relief the canse or mat:relating ,tpor c(;mnected .tel'. any whether .to tpe; D,9t, 1"ho shall have been duly to any rule of granted su,cb person if he a defendaD,t ,to a dulyiJ;lstitnted by the same : f9t a.,hd persort served any such potioe.sllall to such cause or matter,:' etc. .7 Wg. ." or4e,rS and rules have been 'lfDder which· . aJ:'e. not ,as broad it: is the consta.nt 'into a cause by; and order, :practice that persons liable for ,tpe may judgment all?" that .be)l?'dependent the "The intenv. (JaB 9,0', IJ.,R. 3 Jnxqp. )51;, ilil all jJlg.qpt,of In,JJene,cke v. Fro8t, L.R{,l .. one of .... '.' _, ,. ,'>
..
J
"'"
'-.'
.,,' '-.
..,,!II
the4uestions'is,;idetit'Iefif liiii: 'between' the: plaintiff ll.nd'delendtintSi, and as between.
the case in which third pattieS: are' ,to
that 1s precisely SO tliat":theyfmAJ!be
bound by the deoosiouJih ",The object af the actwasndt 10nly being litigated twice, bntto the Ilcil.ndll.1 which'sometimes:: arose by the samequeationbeing diffel'erttly' 'by differenit juries." In Eie parte Smith, L.R. 20h', Div'.' 51; 54, 'MtllLfrrSlt,',L'I: J., says: "There·wouldbe 'risk ,olthe qU6sli6n Iheilig' decided in different ways in, the', two' 'proceedings (if 'the, other party were not J>rought in) which would.produCe great ;' ' A case in' the ·.a;dmitalty;di-vision .is reported in 37 LawT· Rep; 505, in the The 234 to Ord.; 19, 'B6W6'1'8 rv. 1Ql B.Div. 652; Oh. Div. 4IT6j:Swansea,y;JDunc'a'1l; lQ. B. Div., 6.49hPddwiCk 'v/SctJU, 2' eh.Div. 736,742; H<11'nby v. 8' Q;.' B.r Dilft.' M9": S-e1rneidlN v.':Batt;· SQ;B. Div.701j PiUe"Iv. RDhert8, 21 198: In l10twelZ LUfi,. don 00;'2' wha1&' !the' defendant''Wa:s;l{ued; third: .pfii-ty' atuomrn:on 'lawfljr alleged to be abo lsought ; i'ntro.duc6d' a,SIt fendantunde't;ctHis 'iprltdticaF"A! :majorJtr,bfJ'lIhlniourt' disallowed it,bl1t i oti ' ;tb8Jt: if party fMrid lift/ble along with :the defendatiti,that', 'lwdlilcl clifthe defe'ndatil'ito good," because;:ttt c6mmon Ja'v"there; :W8S: 1\0 contribiitiOn:· between them. 'rhia, as, we i 'have ha.s: no applieatiOl:bin'l'l.dlllii-alty. In' the case of Hornby':v. supra,; Lord: J says, (po. 388 :) "The C15mbined"effect ofthetfe rulea and ro1'd&'r$Jiil tha'tiwthilid party, wHen joined'ltB Inll}h, 'a with;a,Uthe; liabilities ofapah:-ty."· i" ":r,'; r '", ·;i .. i . , As I have siti41 above;ltMfo1+m'in whiClh; r.eliefin tooBe CltileS tlhould be afforded i'sk queh'tion of.practi«m merely j! 1 !Mfi;ph; '1lIS legislation 'candgive are· :collle1red; by law 'On the" dist:tict court in' eases of adinitBltyatid 'DHl.l'ititile 'and' of proceeding, "and iJil.lteratioDBLbJ.tJ,tdd1tioD.:etherbto ail the said courts shall in their discretion deem expedient," an'd" "to' ·the:' pra,c1iOe ll.S· i$l1till' andl heteSMty futiblt adiV aMe. mantofj uetice;" isnbjec t, owij- to att" pt.onslol1B bf oo:l the .0\18;. at Large, 276; Aot1792, e'il36.;'§'·'2t)MY.8&5t §7';' Steam Stone Cutter v. Jones, 13 FED. REP. 568,577-581. The words,
v.
176
FEDERAL BJIPOBTEB.
"modes of proceeding" in these aots, lmYS MABSHALL, C. J., in Wayman v. Southard, 10 Wheat. 32; "embraoe the whole progress of the suit, and every transaotion in it." The admiralty rules adopted by the sUNeme court donot.prQvide for the case here presented; and by rule 46 the,pre:-axistingpowers of the court in such cases are expressly recognized and affirmed to regulate its practice in admiralty "in such it shall, deem for the due administrp.tionof jU'8tice.". The Zenobia,l,Abb. Adm. 48, 52---55; U. S. v. Stevenson, LAbb., (.0. 8.}495...,501; Louis,iana y. Nicker8on, 2 Low. 310, Il 14. See,'/iJIso, per BRADLEiY, J., v. Vanderbilt, 5 ,Mott: rrans. 48, 59, 60; The Monte A. 12 FiIjlD. REl','S31, 386. See, also, ')toomL'a1't, etc., v. Navigation, 00. L. R..7 App. Cas. 795,' 806, 820. . Holding, the'J1efore" 8,S I feel bound to do., uader ,the decisions of \he llup,rE1me' Mli-rt, (tbiae!asspf'cases a ,VeS/>till. sued alone is contributil,)n',oran.: apporliQ);,lment of. damages' as a8ub.·; stantial right as ft,gaisst. ,another eqqa.:liy liable, ,and to some mOdeohelief by which that J;Q4<Y be made /lIvailableand effectby further process against the other. v..essel upon ive,.l think aa Q.bove .sta.ted, is at once the .moBi ex· the petition of pedient, the mO$tdirect, most effectual, while.. it does not' interfere with any substantial rights of thelibelant,nor impose upon him ttny additional bu:rdens"ernbarrassments,. or obliga.tions on the trial!Qf the cause. IfJl)le libelant maybe subjected to the additional liability of an a.ppaa;l 9Y two'd,efendants instead. of one, thisconsid· erati.onis,it S6ems to me, qiiite overborne by the far more urgent considerations which require the rights of the parties, in this class of cases, to be heard,ttn.d..adjudicated in the same cause in accordance with the general rule.in equity and the approved by modern legislation. .The.lil)elant's rigb,t is not a right by any express contract, and it should be administered with due regard to the rights of others; and this: requires, in .the ,peculiar and exceptional class of cas6sunder conside:(ation, that any other vessel liable .for the same damages shopld be brought into the cause, if appli<lation therefor be made. Such ,applicati<m., to avoid embarrassment to the libelant, shonld, ordinarily., be, made before answering, unless the delay be excnsed" ' In the present case, as"the: question is new, the application will not he d.enied on the ground of laches; bU.t specil\l terms will :beimposed" which may'be sQggested by the libellJ,nt on the settlement, on notice, of an order in with this decision.
JlURNS V. !dULTNOJU,H R. 00.
177
BURNS
MULTNOMAH
R. Co. ,
(l'h'rcuit Oo'Urt; D. Oregon. February 23.1883.) 1. COUNTY RoAD-JURISDICTION TO EsTABLISH.
The county court has no jurisdiction of an application to establish a county road, except !upon the petition of 12 householders of the vicinage, and notice to the persons,concerned. M prescribed in seQtjons and 3 of the road law. , Oregon Laws, 72], :&. SAME-ORDER
An order esiablishing a countyrriil.d mustditect the surveythereono be recorded; land where the,oroer. provided thM the s1AA"rey shOUld be recl,lrQ.ed when the gave, a ,J;>ond,yc>ppen a of the proposed roa!!:, wIlich was ' never done, and the record never ,p,ade, the roal! was not established:, 8. LiriGfSLATURE"",;PoWka OF, TO LEa'ALIZE ACTS
dF
COUNTY COURT.
The legislature may legalize:the act of a COUi1ty ciourt in establishing a road not. without, nl>ticC:!t!> the persons concerned. without a legilJ' petition, 4. TAKING PRIVA,TlllPROl'ERTY FOn,PUBLIC USES. .'
(O'r:' Const. art. 1, § 18) from ,taking private property for' pubif6 uSe Without j'uJt' compensation therefor, it is' necessarily eo.tak<en shall have notice of implied theteby that the owner of the. the proceeding for appropriation, and an opportunity to be heard 5. FOURTEENTH AMuDQNT..... PROCESS ,OF ,LAW. " "
, ' UndertJ;1e fourt.eenth amendment a'Btatecannotappropriate private property for'any purpose without due proceSs oflaw, whibb. includes notice of the proceedinglt'Ild a prescribed :opportunity to. be heard upon the question involved. 6. OF THE USE OF A STREET TO A RAILWAY
A grant by a county court, under sectiOn 26 of the corporation set, (Or J"8WS, S30,) of the use of a street to a railway corporation for the purpose 'of constructing and operating a railway thereon, is a grant ofa franchise, and the order or agreement making the same must most strongly against the cor· poration and in favor of the public, so that nothing shall pass thereby but what clearly' appears to have been intended. ' 7. Sum-CAsE iN JUDGMENT. Where the agreement authorized a corporation proposing to construct a railway from Albina to Vancouver, to la,Yits track through the former place upon c!Jrtain streets therein, "beginning at the ferry landing at the foot of Mitchel street," and it appearing thatllaid ferry landing and Mitchel street were different and not contiguous places, held, that the ambiguity must be resolved against the corporation, fl,ud the agreement construed as if it read, tile foot of Mitchel street." simply, 8. ApPROPRIATION OF STREET 01\ HIGHWAY BY RAILWAY.
A railway corporation> cannot be authorized under section 26 of the corporation act aforesaid to. appropriate a public street or road to its use, unless 9uch road or street has beeu legally accordinjt to some mode ' " prescribed by statute.
Suit for an Injunction. George II. Williams, II.' Todd Bingham,' and E. W. Bingham, for nlaintiff. v.15,no.3-12