Robert Cooper Grier

“ But it is further objected that, by allowing the libellant to amend, or dismissing the bill as the certain parties, injustice was done to other parties-to the sureties; who, having agreed to abide the result of a libel which could not be sustained, have to abide the result of one which has been thus freed from objection. The same objection was raised in the case of The Harmony, [4] but was not held of force. It was there observed, that it would not have force in a common lawsuit; and a fortiori would find no support in a court exercising admiralty jurisdiction. ”

“ Indeed, the only power the contracting parties have respecting such liens as attach as consequences to certain contracts is, that the creditor may waive the lien, and may by express stipulation, or by his manner of dealing in certain cases, give credit exclusively to those who would also have been bound to him personally by the same contract which would have given rise to the lien. ”

“ The contract of suretyship is stricti juris, and cannot be extended by implication. [1] The undertaking of the sureties was to satisfy such decree as might be rendered upon the libel filed, under which the vessel had been seized; and it is obvious that no other decree could have been rendered upon the libel, in its original form, than one of dismissal. If the libel was not authorized by law, if, in fact, as was the case, it was in direct violation of the law and the rules adopted by this court governing proceeding in the admiralty, the seizure and detention of the boat were illegal ab initio ”

“ It has been objected here, that the allowance of the amendment was injurious to the sureties in the bond given for the property. But this objection is without foundation, as their liability was neither increased nor diminished. 'Every person bailing such property is considered as holding it subject to all legal dispositions of the court.' [8]
It has been contended, also, that the right of the libellant to sustain this action ceased by his abandonment to the underwriters. ”

“ An assignment is not and never can be a maritime contract; it is always an ordinary civil contract. Maritime liens are not established by the agreement of the parties, except in hypothecations of vessels, but they result from the nature and object of the contract. ”

“ In these there is the usual conflict of testimony which always attends such cases. The issue is one entirely of fact, and depending on the credibility of witnesses. The District and Circuit Courts, after patient investigation of the testimony, concur in the opinion that the libellant has fully established his case. The record contains the opinion delivered by the learned judge of the Circuit Court, which fully vindicates the correctness of his decree. ”