pose or believe, at the time the condenser was contracted for, that it was to be supplied on the credit oltha boat or its owners. This appears to have been an after-thought. Having in the beginning, with a knowledge ottheterms olthe charter-party, contracted with and given credit to the charterer, it is now too late for· the libelant to charge the vessel for work and materials which were not ordered by the owners, and for which the decided weight of the evidence shows he was notified in advance they would not be responsible. It was insisted on behalf of the libelant that as the boat had received the full benefit of the work and materials, and only half the bill had been paid, the owners are now equitably liable for the balance. But it does not follow that because owners were willing and agreed to pay $1,000 to the charterer for putting in the condenser, that, therefore, they must also pay the libelant an equal sum for the same work. The owners paid as much as they thought ihecondenser was worth to them, and the amounts and terms of payment were known to the libelant before he entered into the contract with Penny. The law does not recognize the existence of a lien on such facts as have been disclosed by the testimony in this case. The Secret, 3 Fed. Rep. 665; The Norman, 6 Fed. Rep. 406; The WiUiarn Cook, 12 Fed. Rep. 919. Let a decree be entered dismissing the libel, with costs.
THE GENERAL SEDGWICX.1
FLEMING fl. THE GENERAL SEDGWICK
(District (Jourt, D.1f'etD Jer8ey. January 12, 1887.)
.ADMIRALTY-AMENDMENT OF LIBEL-SUBSTITUTION OJ' PROOEEDINGS IN SONAM FOR PROOEEDINGS IN REM,
While it may be the practice, upon final hearin/r, to sometimes allow the substitution of proceedmgs in personam for proceedIngs in rem, where the record shows a clear right of recovery against those who have appeared and contested the claim on its merits, no such practice exists where the claimants have apJileared solel1. for the purpose of excepting to the libel, and when the applicatIOn to substItute proceedings in personam for proceedings in rem is founded upon the allowance of the exceptions. Such amendments cannot, under the rules, be permitted, unless it be that both remedies could originally have been joined in the same libel.
The substitution of proceedings in personam for proceedings in rem will not be permitted, unless both remedies could originally have been joined in the same libel.
Exceptions tolibel, and motion to amend.
by Theodore M. Etting, Esq., of the Philadelphia b.....
Ludlow McCarter, for libelant. Alexander & Ash, for respondent.
WALES, J. A contract was made between the libelant and the claimants, for the transportation of passengers on vessels belonging to the claimants. Thp. contract was a maritime one, but wholly executory, and no performance of it had been entered .upon. The libelant has sued in rem for a breach., 'rhe vessels were attached under process, and released on bond. The claimants have appeared by their proctor only to except to the libel, and to object to the jurisdiction of the court. They have put in no answer. ,It conceded that no lien exists on the vessels, and application is now Qlade by the libelant's proctor for leave to amend the libel, by praying process and judgment in personam against the owners. .been decided in this circuit that proceedings in rem and in per· sonam cannot be joined .in the same libel, except as provided for in the supreme conrt rules in, admiralty. The Alida, 12 Fed. Rep. 343. The present case does not fall within any of the exceptional visions.. It was held The Monte A., 12 Fed. Rep. 338, that such ameIld'ment could not be allowed where, under the rules, both remedies oould not be conjoined in the same libel. In that case the owner had appeared,.and put in his answer, and much testimony had been taken before it was discovered that no lien existed upon the vessel; at the nearing, under the peculiar state of the pleadings and evidence, the libelant was permitted to amend, and proceed in personam. It has been said (under a semble) to be the practice of the admiralty court in some cases -in suits in rem, where the record shows a clear right to recover irn personam, against one who has appeared and contested the suit-to allow the libelant to proceed to a decree in personam, (The Zodiac, 5 Fed. Rep. 222;) but the case at bar does not belong to that class. Exceptions sustained, motion to amend refused, and ordered that a decree be entered dismissing the libel, with costs.
THE BURGUNDIA. 1
and others v.
(OVrcuit Oourt, E. D. NCIJJ York. June 21,1886.)
CARRIERS-OF GOODS-SHIPs-DAMAGE TO CARGO-1:MPROPER STOWAGE.
On the delivery of a consignment of eight drums of glycerine, two were found to be broken. On suit brought for the loss, held, that if all eight were stowed in an equally proper place, then the stowage of the two could not, in detail and arrangement, have been proper or sufficient. If the two were
Reported by R. D. & Wyllys Benedict; Esqs., of the New York bar.