FEDERAL

:vol.

40.

imposition might be practiced, especially if previous potations had combined with nature to ma1te the latter oblivious to surrounding occurrences. For such conditions, however, the defendant is not responsible. In short, infrihgement in this ·cause is reached through a succession of improbable "Hs" that the doctrine, if pushed a few steps further,WP;\t14.driye,ll:U competitors from the field. The law cannot be so refined deal with, hypothesis and conjecture. The defendant is not arfimpostot. He is not representing himself or, his wares in a false light; He is openly and plainly advertising his wines to be exactly what they are. It was necessary for him to use a capsule of some kind. Almost all colors harmonious for this use, such as gold,. sjIver, and white, had previonsly been appropriated- by other dealers In champagne. He could hardly select a capsule without coming in contact with some of them. lIe,chose rose-color, as hehad a right to do. If he had simulated the' ¢omplainants' labelsiti other respects, a. different proposition would have been presented. As ilis, there is nothing of which to predicate a decree against bim.' ,No authori"ty has been cited which, in my Judgment, sustains theadval1ced position contended for by the complainants. . The bill is dismissed.

THB NORMANDIB.

O'SULLIVAN f1.

LA CoMPAGNIE GENERALE TRANBATLANTIQUE. SAME "

ale t1.

THE

NORMANDIB.

'(1)t8trlct Coulrt,S.D.New York. NovAmber 20,1889
,

1.

0

ADMtBA!.'1'r-Oo*OtlilRENT AcTIONS IN RBM AND IN PERSONAM. PROOEEDINGS. '

, A suSt iIn'l'em'and a suit .in personam, arising out of, the .me cause of action, may be brought conwrrently in, the same court.

'2. SAME,..-Ai>P1,ioATION 1I0R BTAY

. When: .. ;suit in remand a suit inp6rsonam are brought uoncnrrentlv for the -me 08lleMI! action, the questiQII whether one shall be stayed until the remedy is eJ[hausted ill the other is wholly a question of practice, to be determined with referenceto the oQIlvenient admInIstration of justice. .

'I. DIlPOSITlONS'-DB :BENE Ess"":'FURTHER EXAMINATION. , . Where, ontaldng bene eRse, the cross-exa,mlnation of witnesses haa been ended In' ignorance cit. tacts material to a further cross-exaniination, the court, . upon proper aftldavits, can make such order as may be JUIt.

In Admiralty. : Exceptiotllnmd motion to dismiss second libel·
. oudert Bros., (E. K. !Jtmea,of' counsel,) forclaimailts. C Carter & for libelant.
, :,l

" , iBeportAld by Edward G.' Benedict, Esq., of the NewYork1:Jar.

THE NORMANDIE..

591

. BROWN; J. I cannot sustain the exception that the ency of the former suit in personam constitJ;l.tesa·bar to the subsequent suit in rem for the same cause of action, though both suits are in this court, and undetermined; noris that a sufficient ground for any stay of proceedings in either suit·. In the case of Inst£rance Co. v. Alexandre, 16 Fed. Rep. 279, the rule that obtains in this country, it is believed, was accurately stated, to the effect that a prior suit pending is not a bar "}Vhere the relief that may be given, or the remedies available, in the two suits are different, though a stay may, in proper case, be granted. To tlle authorities cited in that <)aBe may be added Waf$on v. Jones, 13 Wall. 715; Buck v. Colbath, 3 Waij. 334; and the recent case of Insurance y · . Wager, 35. Fed. Rep. 364. Though Dr. LUSHINGTON once dismissed a subsequent suit, the later English cases a stay of procee<,{.ings. The Bold Buccleugh, 7 Moore,.P. C.. 283; The Mali Ivo, L. R. Adm.&Ecc. 356; ThePe$hau;v,r, L. R. 8 P.t:ob. Div. 32. The fifteenth rule of the supreme court,inadmiralty, by implication,prohibits only the joindlll althe Ilhip and owners in the same suit. These'areindependent suits. .,No one ev:ersupposed that rule to forbid. a suit in personam. to recover what was not realized upon a prior judgment in .rem, or.mce versa. In the recent case of The Jessie Williamson, 108 U. S. 305, 2 Sup. Ct. Rep. 669, a collision case, Mr. Justice BLATCHFORD, in reference to rule 15, says:

It "excludes the joining in one suit of the vpssel and her owners; but it does not prevent the introduction into the libel of allegations as to the ownership of the vessel at the time of the collision, with a view to a proceeding to obtain such ultimate relief in personam, on the basis of a recovery in rem, as the libelant may be entitled to."

If successive suits, upon the same demand, may be maintained in personam and in rem, or vice versa, until satisfaction is obtained, it is wholly a question of practice whether the two may be brought concurrently, or whether the second suit shall not be allowed until the remedy in the first shall be exhausted. That question must be determined with reference to the convenient administration of justice. Rev. St. §§ 913, 918, rule 46; The Hudson, 15 Fed. Rep. 162, 175. Where the actions are in different courts, and either remedy may be sufficient, it would be oppressive to proceed with two actions at the same time. In admiralty suits, when both actions are in the same court, no prejudice can ordinarily result to the defendant from concurrent suits, since, in the usual course, both would be heard together, and the costs can be adjusted according to the circumstances, being in part imposed on the libelant, if that be equitable. In suits for collision the exigencies of maritime affairs would make inexpedient and unjust any rule of practice that would prevent the filing of a libel in rem merely because there was pending a prior libel in personam, or vice versa, since either alone might be insufficient to insure satisfaction. The libelant is often obliged to proceed against foreign owners, or foreign ships, at the moment that chance may bring them within the jurisdiction. The

FEDEBALREPORTER,

vol. 40.

owners tnay be temporarily here, and the ship not here, and never expected to be here; or, if expected, not expected for a long time. The sh\p may be here, while the owners are not here, and have no other known property-here. If service is not obtained when opportunity for service occurs, it may never be obtainedjor, if obtainable afterwards, the lien in rem may in the mean time be lost by delay,through the sale of the Tea, or by subsequent claims. These considerations apply with special emphasis to maritiroecausesj and a practice that prohibited such concurrent suits would tend to defeat; rather than to promote, the administration of justice. As no harm or substantial prejudice or inconvenience can arise to the defendant by the allowance of such concurrent suits, will,in the ordinary course, be tried together, I must overrule . the exceptions and deny any stay of proceedings in either suit. The already taken in the earlier action are an independent matter. Upon proper affidavits showing that a further cross-examination i)f the . witnesses is necessary, and that the stipulation was given, and the crossexamination ended, bytherespdndents' counsel in ignorance of facts material to a necessary further oross-examination, the court can make ' such oroeras may be just.

BRIQGS EXCURSION 00· .". FLEMING.

693

BRIGGS EXCURSION

Co· .".

FL,EMING.

(Circuit Court, D. New Jersey. November 25,1889.)
ADHIlULTY-WRONGFUL ATTACHMENT.

A libelant who procures the seizure and detention of vessels for the purpose of enforcing an alleged lien against them, without an order of court, when, on the facts stated in his libel, he has no lien, is liable in damages to the owners, even though ,he acted in good faith, as an attachment issues as of course in such cases on the filing of the libel,and a special order of court is not required.

At Law. On demurrer to replication. Trespass by the Briggs Excursion Company against Walter M. A. Fleming, for alleged wrongful seizure and detention of plaintiff's property. On August 12, 1886, the 'defendant filed a libel in rem, in the United States district court for the district of New Jersey, against the steamer General Sedgwick and the barge Republic, in a cause of damage, civil and maritime, for the breach of an executory contract in the nature of a charter-party. ,On the same day process'of attachment and monition was issued to the marshal, by virtue of which, on the following day, that officer seized and took in custody the vessels named, being the property of the Briggs Excursion Company, the plaintiff in this action, and held them until released on bond. The allegations of the libel were, in substance, that the vessels were owned by the plaintiff corporation, and that the plaintiff and defendant had entered into a contract, which is recited at length in the libel, to the effect that the Briggs ExcursionCompany had agreed to charter the two vessels to the defendant for a day's excursion; that when the day arrived for the fulfillment of the contract the vessels were not ready, and the defendant 'Was compelled to hire other boats, and was put to great loss and damage, amounting, in all, to 81,282. On the return of the writ the plaintiff appeared, by itR proctor, in the district court, only to make exceptions to the libel, and object to the jurisdiction of the court, and after a hearing the libel was dismissed for want of jurisdiction. See The GenfJl'al Sedgwick, 29 Fed. Rep. 606. The plaintiff thereupon brought this action for an illegal seizure. , The defendant has filed two pleas to the declaration: (1) The general issue; (2) justification, in that the writ was issued by the order of the district court. To the first plea there is a joinder; to the second plea there is a replication that the writ was illegal and void, for the reason that the court had no jurisdiction of the matters alleged in the libel. Demurrer to replicatiob, and joinder. Mark Ash, for the plaintiff, cited 1 Wat. Tresp. 391; Id.510; Kerr v. Mount, 28 N. Y. 659; Ohapman v. Dyett, 11 Wend. 31; Smith v. Shaw, 12 Johns. 257; Hayden v. Shed, 11 Mass. 500; Oodrirtgton v. Lloyd, 8 Adol. & El. 449; Parsons v. Lloyd, 2 W. El. 845; Wehle v. Butler, 61 N. Y. 245; MiUer v. Adams, 52 N. Y. 409. Robt. H. McCarter, for defendants, cited Hen. Adm. 337; The Adolph, 5 Fed. Rep. 114; Thompson v. Lyle, 3 Watts. & S. 166; The EvangelismoB, 12 Moore, P. C. 352; The Oathcart, L. R. 1 Adm. & Ecc. 314; The Kate, v.40F.no.l0-38