lURDY V. MOORE.
84:8
that tug is in fault. The gravamen:of the libel is that both tugs were to blame, and of course that showing one in fault will not show the other to be free from fault. Not only did the libellant introduce no evidence in the dis. trict court, but he has introduced none in this court, although the appeal states that he intends to have the case heard in this court on proofs and testimony. As no case of negligence is made out against anyone of the three vessels sued, the libel must be dismissed as to each.
HARDY t1. MOORE.
{Di,trict (Jourt, 8. D. New York. November, 1880.)
J.
SIGNING
LmEL.-PrOCess issued on a libel sworn to by one of the proctors as attorney in fact, but unsigned except by the proctors by their firm name, is not void. The failure of the libellant or his agent to sign is, in such case, a defect amendable, but until amendment baa been allowed the libel must be considered as still unsigned, though the proctor who swore to it as attorney in fact afterwards, but without leave of the court, signed the same. After judgment the court is bound to overlook this defect. Rev. St. § 3954.
3. NAME OF LmELLANT.-Naming the libellant by the initials of his Christian name does not prejudice the defendant and is immaterial, though it seems so to name the defendant, in publication under an order of attachment, would vitiate the attachment. Frank v. Levie, 5 Rob. 599.
In Admiralty. Order to show cause. On September 29, 1880, a libel was filed with prayer for process in pe1'sonam and clause of foreign attachment. The process was accordingly issued, and on October 5th was· reo
turned with the marshal's that he had been to find the respondent, but had attached the credits and effects of the respondent in the hands of a garnishee. An interlocutory decree and order of reference were then entered on their default. Shortly after the said process was issued it walp discovered that the libel, though sWQrn to, had not been signed except by the proctors as proctors. It was then signed, without permission of the court, by one of the proctors in behalf of the libellant, who had sworn to it as attorney in fact. Subsequently, on October 15th, on affidavit of one of the proctors, setting forth that when the said process was served the garnishee had no credits or effects of the respondent, but that it now holds such credits and effects acquired since that time, an alias process was :by the court to issue, and an attachment..was ag,ain levied 1;>y the marshal au the credits and effects of the respondent in the hands of the garnishee. bn 'fBerettirn-dayof' this neither the respond'. :ent',' nor the garnishee appeared, and a second interlocutory ;(}ecloo and order,of reference to a commissioner were entered. '!"estinxony was taken before the referee, his report made 'and :filed, costs taxed, and the final decree entered October 20th.' On 25th an order to show cause on affidavit was granted to the. proctor forthe respondent why the final decree and thlil prOcess should not be vacated, or, if not vacated,why the respondent should' not be allowed to appear herein and answer, etc. ' Sdmue,l W. Weiss. for respondent. Beebe, Wilcox &: Hobbs, for libellant. CHOATE, D. J. The return of the marshal to the process 'shows that he made diligent search for the principal defendant and could not find him. The moving affidavits raise such yuestion of the truth of this return that if it were material an inquiry would be ordered. But I think the order of the court that an alias issue, made on proof by affidavit that the court had acquired no jurisdiction by reason of having made no attachment, must be deemed to have vacated in effect the -first interlocutory decree. .It treats that decree as a nullity. It would have been proper and more regular to have entered
,an order attheso,me tq do so does not, Iihink,.xpakethe, ali!u irregular. The information the libellant's proctor ,hltd, whep be applied for an order that pvocess withr;foreign attachment issue, was such as to authorize it; and there is nothing to show a want of good faith on his client's part in fajling to communicate to his proctor that he knew about principal defendant's residence and place of business. The issue of the alias process was justified by the state of the facts existing when it issued, and it was duly served. Therefore, the q'Uestjon raised as to the service of the original prOCdSS is imma'signed pefore terial. The libel shoul,d have It appears to have been signed by "Beebe, Wilcox & Hobbs" as proctors, and verified, as appears by the officer's certificate. I do not think the failure of Mr. Beebe to sign it, which on the affidavits seems to be admitted, made the process void. It was a defect which,.would have been cu;r;ed by amend· .ment. But' no' having; beeh' allowed, the libel must be considered as :stijl Wile cox & Hobbs" as proctors.. I if it was in fact and that appears by the certificate, this is a defect the court is bound to overlook after ju4gment. Rev. St.§95k The libellant being named by h,is initials immaterial. It does It might be,.quite otherwise if an attempt were map-e, top;ubJis,h aga;jnst by his initials. He might be, pJ;ejudiced thereby and the notice ,Utsufficient. Frank v. 5 Rob., 599. Neither the principalnQr; the garnishee show any very good reason for not appeapng. The garnishee appears to have supposed that need not appear in obedience to the first process because it had no funds. It was so advised. This is the very reason why it should have appeared. It supposed it had funds when the second process was served, but now finds that another person claims the funds. I think, therefore, its default should be opened. The principal defendant appears to have bad a proctor retained to attend to the business all the time, and why no appearance was entered does not appear, unless it was because the whole proceeding was regarded as
846
FEDEBAL'BEPORTER·
.void on account of the defect in the libel, which was an error, as I 'think. But he now shows that he may have a defence on the merits. Default opened as to principal defendant and garnishee, on payingthe fees and expenses paid upon the reference; the principal defendant to file his answer, setting up defence referred to in his affidavit, within five days after entering order on this memorandum, and stipulating that the issues be referred to a commissioner for trial; either party, however, being at liberty to make any application to the court that he may be advised, in consequence of the libel being unsigned except by "Beebe, Wilcox & Hobbs," proctors, on one day's notice.
SMITH tl. STEAMER JOSHUA. LEVINES.
(District Oourt, S. D. NemYork. December 28, 1880.) 1. WAGES-INTOXICATION-EVIDENCB.
O. H. Williams, for libellant. O. E. Crolvell, for claimant. CHOATE, D. J. This is a suit for wages during the years 1877, 1878, and 1879. The libellant alleges a special agreement to pay him $100 \. month during the time the vessel was running. He served as engineer and fireman. The promise to pay the libellant $100 a month is proved, but the claimant has attempted to show that he was so intoxicated when he made the promise that he did not know what he was doing. I think the weight of the testimony is against the claimant on this point, and the libellant is entitled to recover his wages at that rate. His wages amount to $2,030 between September 1, 1877, and February 11, 1879. He admits that the claimant is entitled to credits, which reduce the amount to $810.29, for which sum, with interest from February 11, 1879, with costs, the libellant is entitled to a ··decree,