Page:Federal Reporter, 1st Series, Volume 2.djvu/409

 402 FEDEBAIi BEFORTKB. �-contraot, and may be proceeded against in rem for a non- performance. Such was the view taken by Judge Emmons in the case of The Williams, 1 Brown's Adm. 208; and although the court went much further in that case, and held that every maritime contract, f rom the moment of its inception, pledged the vessel to its complete performance, the case cannot be considered as a controUing authority for this proposition. In that case a tug was hired to go to the assistance of a vessel whioh had been reported aground on the shore of Lake Huron. On arriving at the spot it was found that the vessel had been gotten ofif, and the tug returned home without rendering her would lie to recover the stipulated compensation. I bave no doubt whatever of the correctness of this ruling. I bave had occasion myself to apply the same doctrine in several cases wbich bave arisen in this district since I bave been upon the bencb. Judge Baxter also adopted it in the recent unreported case of the Melissa. �Prior to the decisions of the supreme court in the case of The Freeman, 18 How. 182, and The Yankee Blade, (in Van- derwater v. Milla,) 19 How. 82, the question of jurisdiotion in the cases of executory agreements was unsettled, and even those cases cannot be said to bave definitely fixed the measure of liability. They seem rather to bave announced in general terms a doctrine from wbich the supreme court bas not as yet shown any disposition to recede. �The question does not seem to bave been settled in Eng- land, although in the case of The City of London, 1 Wm. Rob- inson, 88, Dr. Lushington was disposed to concede that "if a seaman is engaged on board a vessel, and the owners think fit to abandon the voyage for wbich the seaman bas been engaged, he would not be entitled to sue in admiralty for bis redress, but must seek bis remedy at common law, by an action on the case." This is the only intimation I bave found upon the subject in the English admiralty, prob- ably owing to the fact that it had no jurisdiotion over con- iraots' of aflfreigbtment nntil recently. The case of The Sckooner Tribune, 3 Sumner, 144, decided by Mr. Justice Story, ����
 * ny actual assistance. It was held that a proceeding in rem