Mr. Chief Justice Shope
delivered the opinion of the Court:
This was a proceeding by attachment, under chapter 12 of the Revised Statutes of this State, by John Corrigan, against the steam canal boat “Nunnemaeher,” for an injury to the canal boat “Midnight, ” upon the waters of the Illinois and Michigan canal, through the alleged gross negligence of those in charge of the defendant boat.
It is first urged, that the circuit court of Will county had no jurisdiction of the subject matter. It is contended that the collision, if produced by negligence, as alleged, was a maritime tort, and therefore within the exclusive jurisdiction of the courts of admiralty, by virtue of the act of Congress of 1789. Where the admiralty jurisdiction of the United States court attaches, it undoubtedly does so to the exclusion of the jurisdiction of the State court, (Cohen’s Admiralty Law, 1,) and a State can not confer jurisdiction upon its courts in such cases. (Ibid; Stewart v. Potomac Ferry Co. 12 Fed. Rep. 296; “The Hine” v. Trevor, 4 Wall. 555.) It is, however, essential to a suit in rem, in admiralty, against the vessel, that an actual seizure be made of the vessel, and it be subjected primarily to the satisfaction of the judgment. Without such seizure the court acquires no jurisdiction of the vessel. Cohen’s Admiralty Law, 22, 23 ; Brennan v. Steam Tug “Anna P. Darr,” 4 Fed. Rep. 459; Miller v. United States, 11 Wall. 294.
In Loy v. Steamboat “Aubury,” 28 Ill. 412, which was trespass, for assault and battery by the mate upon the plaintiff while a passenger, brought under the act of the legislature of this State of February 16, 1857, this court held that the action would lie,—citing Steamboat “Champion” v. Jansen, 16 Ohio, 91, and Canal Boat “Huron” v. Simmons, 11 id. 458. In Schooner “Norway” v. Jensen, 52 Ill. 373, it was held that the act of 1857, giving a summary remedy in certain cases against steamboats and other water-craft, was not confined in its operation to vessels navigating the rivers within or bordering upon this State, but embraced those employed upon any of the navigable waters of the State, and that a sailor injured on board a vessel through the negligence of the owner, might proceed, under that act, by attachment and seizure of the vessel. The second section of the act authorized suits against the owner or owners or master of the craft, or against the craft itself, and section 4 provided for the seizure of the craft. In Tugboat “E. P. Dorr” v. Waldron, 62 Ill. 221, which was an attachment for supplies, this court held that the proceeding had no resemblance to a libel in a court of admiralty, but was of the same character as an ordinary attachment, requiring notice to be given of the pendency of the suit, and that by it no prior liens were interfered with,—citing Germain v. Steam Tug “Indiana,” 11 Ill. 535.
The action in this case was for a tort, which, in the language of the Appellate Court, may be defined “to be an injury or, wrong committed, with or without force, to the person or property of another, and such injury may arise by either the nonfeasance, malfeasance or misfeasance of the wrongdoer. ” The common law affords a remedy for torts, although they may be committed upon a navigable stream; but in such case the remedy is not exclusively in rem, or such as pertains to a court of admiralty. The common law remedy is by an action in personam,—that is, against the wrongdoer in person,—and not primarily or solely against his property. The State may, by statute, authorize the attachment of the property of the debtor or tort feasor, as a security for the satisfaction of the judgment to be recovered, and in such case the proceeding is in personam and not in rem. The object of the attachment in such case is to secure a lien upon the property seized for the payment of the judgment, and not for the condemnation of the property attached.
In the case of “The Moses Taylor,” 4 Wall. 411, the court say: “The case before us is not within the saving clause of the 9th section of the act of 1789. That clause saves only to suitors ‘the right of a common law remedy where the common law is competent to give it.’ It is not a remedy in the common law courts which is saved, but a common law remedy. A proceeding in rem, as used in' the admiralty court, is not a remedy afforded by the common law. It is a proceeding under the civil law. Where used in the common law courts, it is given by the statute.”
In “The Hine” v. Trevor, 4 Wall. 555, the same court say: “If the facts of the case before us, in this case, constitute a case of admiralty cognizance, then the remedy, by a direct proceeding against the vessel, belonged to the Federal .courts, alone, and was excluded from the State tribunals. * * * It is said that the statute of Iowa may be fairly construed as. coming within the clause of the 9th section of the act of 1789, which saves to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it. But the remedy pursued in the Iowa courts, in the case before us, is in no sense a common law remedy. It is a remedy partaking of all essential features of an admiralty proceeding in rein. * * * While the proceeding differs thus from the common law remedy, it is also essentially different from what are in the West called ‘suits by attachment,’ and in some of the older States ‘foreign attachments.’ In these cases there is a suit against the person of defendant by name, and because of inability to serve process on him, on account of non-residence, or for some other reason mentioned in the various statutes allowing attachments to issue, the suit is commenced by a writ directing the proper officer to attach sufficient property of the defendant to answer any judgment which may he rendered against him. This proceeding may be had against an owner or part owner of a vessel, and his interest thus subjected to sale in a common law court of the State. Such action may be also maintained in the common law courts by such remedy as the common law gives.” See, also, “The Belfast,” 7 Wall. 624, and “The Lottawana," 21 id. 558.
In Johnson v. Chicago and Pacific Elevator Co. 119 U. S. 388, that court again says: “Liens under State statutes, in suits in personam, are of every day occurrence, and may extend to the lien on vessels, where the proceedings to enforce them do not amount to admiralty proceedings in rem, or otherwise confliet with the constitution of the United States. There is no more valid objection to the attachment proceedings to enforce the lien in a suit in personam, by holding the vessel by mense process to be subjected to execution on the personal judgment when recovered, than there is in subjecting her to seizure on the execution. Both are incidents of a common law remedy, which a court of common law is competent to give.”
Such has been the uniform construction placed upon the act of Congress referred to. In the case at bar, after the seizure of the boat, the personal bond of appellants, as part owners and sureties, was substituted, and the vessel was thereby released and discharged from the seizure, and thereafter the case proceeded to final judgment as a proceeding in personam. The suit was originally entitled John Corrigan v. The Propeller “Nunnemacher,” and the unknown owner or owners of said propeller “Nunnemacher.” After the trial, the plaintiff, by leave of the court, amended the title of the ease so as to make the bondsmen, George A. Gindele, George T.
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Mr. Chief Justice Shope
delivered the opinion of the Court:
This was a proceeding by attachment, under chapter 12 of the Revised Statutes of this State, by John Corrigan, against the steam canal boat “Nunnemaeher,” for an injury to the canal boat “Midnight, ” upon the waters of the Illinois and Michigan canal, through the alleged gross negligence of those in charge of the defendant boat.
It is first urged, that the circuit court of Will county had no jurisdiction of the subject matter. It is contended that the collision, if produced by negligence, as alleged, was a maritime tort, and therefore within the exclusive jurisdiction of the courts of admiralty, by virtue of the act of Congress of 1789. Where the admiralty jurisdiction of the United States court attaches, it undoubtedly does so to the exclusion of the jurisdiction of the State court, (Cohen’s Admiralty Law, 1,) and a State can not confer jurisdiction upon its courts in such cases. (Ibid; Stewart v. Potomac Ferry Co. 12 Fed. Rep. 296; “The Hine” v. Trevor, 4 Wall. 555.) It is, however, essential to a suit in rem, in admiralty, against the vessel, that an actual seizure be made of the vessel, and it be subjected primarily to the satisfaction of the judgment. Without such seizure the court acquires no jurisdiction of the vessel. Cohen’s Admiralty Law, 22, 23 ; Brennan v. Steam Tug “Anna P. Darr,” 4 Fed. Rep. 459; Miller v. United States, 11 Wall. 294.
In Loy v. Steamboat “Aubury,” 28 Ill. 412, which was trespass, for assault and battery by the mate upon the plaintiff while a passenger, brought under the act of the legislature of this State of February 16, 1857, this court held that the action would lie,—citing Steamboat “Champion” v. Jansen, 16 Ohio, 91, and Canal Boat “Huron” v. Simmons, 11 id. 458. In Schooner “Norway” v. Jensen, 52 Ill. 373, it was held that the act of 1857, giving a summary remedy in certain cases against steamboats and other water-craft, was not confined in its operation to vessels navigating the rivers within or bordering upon this State, but embraced those employed upon any of the navigable waters of the State, and that a sailor injured on board a vessel through the negligence of the owner, might proceed, under that act, by attachment and seizure of the vessel. The second section of the act authorized suits against the owner or owners or master of the craft, or against the craft itself, and section 4 provided for the seizure of the craft. In Tugboat “E. P. Dorr” v. Waldron, 62 Ill. 221, which was an attachment for supplies, this court held that the proceeding had no resemblance to a libel in a court of admiralty, but was of the same character as an ordinary attachment, requiring notice to be given of the pendency of the suit, and that by it no prior liens were interfered with,—citing Germain v. Steam Tug “Indiana,” 11 Ill. 535.
The action in this case was for a tort, which, in the language of the Appellate Court, may be defined “to be an injury or, wrong committed, with or without force, to the person or property of another, and such injury may arise by either the nonfeasance, malfeasance or misfeasance of the wrongdoer. ” The common law affords a remedy for torts, although they may be committed upon a navigable stream; but in such case the remedy is not exclusively in rem, or such as pertains to a court of admiralty. The common law remedy is by an action in personam,—that is, against the wrongdoer in person,—and not primarily or solely against his property. The State may, by statute, authorize the attachment of the property of the debtor or tort feasor, as a security for the satisfaction of the judgment to be recovered, and in such case the proceeding is in personam and not in rem. The object of the attachment in such case is to secure a lien upon the property seized for the payment of the judgment, and not for the condemnation of the property attached.
In the case of “The Moses Taylor,” 4 Wall. 411, the court say: “The case before us is not within the saving clause of the 9th section of the act of 1789. That clause saves only to suitors ‘the right of a common law remedy where the common law is competent to give it.’ It is not a remedy in the common law courts which is saved, but a common law remedy. A proceeding in rem, as used in' the admiralty court, is not a remedy afforded by the common law. It is a proceeding under the civil law. Where used in the common law courts, it is given by the statute.”
In “The Hine” v. Trevor, 4 Wall. 555, the same court say: “If the facts of the case before us, in this case, constitute a case of admiralty cognizance, then the remedy, by a direct proceeding against the vessel, belonged to the Federal .courts, alone, and was excluded from the State tribunals. * * * It is said that the statute of Iowa may be fairly construed as. coming within the clause of the 9th section of the act of 1789, which saves to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it. But the remedy pursued in the Iowa courts, in the case before us, is in no sense a common law remedy. It is a remedy partaking of all essential features of an admiralty proceeding in rein. * * * While the proceeding differs thus from the common law remedy, it is also essentially different from what are in the West called ‘suits by attachment,’ and in some of the older States ‘foreign attachments.’ In these cases there is a suit against the person of defendant by name, and because of inability to serve process on him, on account of non-residence, or for some other reason mentioned in the various statutes allowing attachments to issue, the suit is commenced by a writ directing the proper officer to attach sufficient property of the defendant to answer any judgment which may he rendered against him. This proceeding may be had against an owner or part owner of a vessel, and his interest thus subjected to sale in a common law court of the State. Such action may be also maintained in the common law courts by such remedy as the common law gives.” See, also, “The Belfast,” 7 Wall. 624, and “The Lottawana," 21 id. 558.
In Johnson v. Chicago and Pacific Elevator Co. 119 U. S. 388, that court again says: “Liens under State statutes, in suits in personam, are of every day occurrence, and may extend to the lien on vessels, where the proceedings to enforce them do not amount to admiralty proceedings in rem, or otherwise confliet with the constitution of the United States. There is no more valid objection to the attachment proceedings to enforce the lien in a suit in personam, by holding the vessel by mense process to be subjected to execution on the personal judgment when recovered, than there is in subjecting her to seizure on the execution. Both are incidents of a common law remedy, which a court of common law is competent to give.”
Such has been the uniform construction placed upon the act of Congress referred to. In the case at bar, after the seizure of the boat, the personal bond of appellants, as part owners and sureties, was substituted, and the vessel was thereby released and discharged from the seizure, and thereafter the case proceeded to final judgment as a proceeding in personam. The suit was originally entitled John Corrigan v. The Propeller “Nunnemacher,” and the unknown owner or owners of said propeller “Nunnemacher.” After the trial, the plaintiff, by leave of the court, amended the title of the ease so as to make the bondsmen, George A. Gindele, George T. Adams and John Andrus, the defendants, and thereupon judgment was rendered in personam against said bondsmen, as it is provided shall be done by the 21st section of chapter 12 of the Revised Statutes of this State, known as the “Water-craft act. ”
In Langdon v. Wilcox, 101 Ill. 606, this court said: “A proceeding under the Water-craft act is essentially, in many of its features, like a proceeding in rem in admiralty, though differing from the latter, it is believed, sufficiently to avoid any conflict with the constitution of the United States, which gives • to the Federal court exclusive jurisdiction in admiralty.” By the 15th section of said act, where the vessel has been seized under the attachment provided for in the act, the owner, or other person interested, may release the same, and have a return of the property attached, upon entering into bond, “conditioned that the obligors will pay all money adjudged to be due such (the) claimants, with costs of suit.” Section 21 of the act provides, that when the vessel is seized on mesne process, and is released upon bond given by the owner or the persons interested therein, and filed in the court in which the proceeding is pending, the bond shall stand in the place of the vessel, and judgment or decree shall be rendered against the principal and sureties of the bond, providing that in no ease shall the judgment exceed the penalty of the bond, and expressly providing, that “the subsequent proceedings, after the bond is filed, shall be the same as now provided by law in personal actions in the courts of record in this State.” It is manifest that appellants have voluntarily submitted themselves to the jurisdiction of the State court; and it is clear, that after-having done so, by filing the bond provided by the statute fertile release of the vessel, the proceeding was no longer in rem, but necessarily in personam, and no other than a personal judgment could have been rendered. This being so, the proceedings here have no similitude to an admiralty proceeding in rem, and we are of opinion that the circuit court had jurisdiction to render the judgment, and also that the motion to-dismiss the suit, entered after the filing of such bond, was. properly overruled.
The point is also made that there was no proof that the-plaintiff was the owner of the canal boat injured by the collision. This is a question of fact, which is settled by the verdict of the jury and judgment of the Appellate Court, and can not. be considered here.
Finding no error in the record, the judgment of the Appellate Court is affirmed.
Judgment affirmed.