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The Mariel.

(District Court, S. D. New York.

January 18, 1881.)

1. Pbactice — Dismissal op Libel — Delay Aras Issue.

The practico of the court docs not authorize the dismissal of a libel, for the libellant’s delay in bringing the cause to a hearing after issue joined. The claimant has an equal right to move the case,

liules S. D. N. Y. 136, 123.

In Admiralty.

The libel was filed in 1866 for salvage, and issue was joined. Both parties noticed the cause for trial, and it was placed upon the calendar. It was reserved generally in 1870, and had not been moved again until 1880. The claimants moved to dismiss the libel for failure to prosecute.

*832George Chase, for the motion.

La Roy S. Gove, contra.

Choate, D. J.

I am satisfied that the practice of this court does not authorize the dismissal of a libel under rule 136*for the libellant’s delay in bringing the cause to a hearing after issue joined. The claimant has an equal right under rule 123† to move the case. On inquiry as to the practice I learn that such has been the construction put upon this rule heretofore. Therefore, although there has been delay which would long ago have barred the claim for staleness if suit had not been brought, or entitled these claimants to a dismissal if libellant had not taken out process; yet rule 123 has at all times put it in the power of the claimant to put an end to the delay. Though it seems that similar rules have elsewhere been differently construed, and though the libellant’s delay is extraordinary, yet it would be unjust to dismiss his libe* consistently with the construction which has hitherto prevailed in this court.

Motion denied.

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