The Octavia

18 F. Cas. 573, 1 Mason C.C. 149

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1816
• Status: Published

Opinion

STORY, Circuit Justice.

The' bond in this case is joint and several, and being taken in a proceeding on the instance side of the court, it is to all intents and purposes a stipulation in the admiralty. It was not from any doubt entertained upon the subject, but simply with a view to consider, what ought to be the practice, that we took time to advise. When any one of the parties to a bond, or stipulation, dies, pending the proceedings, there is no doubt, that this court may, by monition, proceed against the administrators or executors of the deceased. The 31st section of the act of 1789, e. 20 [1 Stat. 90], applies more immediately to suits in personam; but, if it were necessary, we should think, that its equity extended to this case. It is not, however, necessary to place this point upon that statute; for independent of any positive acts, the court has a right, in the exercise of its general admiralty jurisdiction, to reach the effects of the deceased in the hands of his representative. In this case it is at the option of the attorney for the United States to take his separate judgments and executions against the surviving parties to the bond; or to proceed simultaneously against the administrator of the deceased obligor. One satisfaction only, however, can be taken upon the executions. If the surety in this case win bring the money into this court, subject to its order, we will, with the assent of the district attorney, in the exercise of the equitable jurisdiction of the admiralty, allow him to proceed against the principals in the bond and their representatives, in the name of the United States, to enforce his indemnity.