Page:Federal Reporter, 1st Series, Volume 6.djvu/220

 208 FBDBBAL REPORTER �sailor in the pursuit of any remedy he had before the statutes WfCre passed, except as to proceedings in rem, leaving the sailor to pursue, at any time after his wages were due, the remedies of suit in personam and against the freight. He looks on the statutes as a restriction on the right of the sailor to pursue the remedy of attachment against the ship before the 10 days provided by act of congress expire, except in the cases excepted in the Revised Statutes, viz., a vessel leaving port before 10 days after her cargo is delivered, and a vessel about going to sea. In ail cases of proceedings in rem, he thinks that the operation of the Revised Statutes delays the filing of the libel imtil the expiration of the 10 days ; but he is without doubt that when that time bas expired, he, the sailor, can proceed in rem as properly as in the cases ex- cepted in the Revised Statutes. Upon this point (the one which concems us in deciding this case) his opinion is clear and conclusive. �The other cases cited — ^by Judge Acheson, of the west- ern district of Pennsylvania, Murray v. Ferry-boat Nimick, 2 Fed. Rep. 86 ; another by Judge Dyer, The Waverly, 7 Biss. 465 ; and another by Judge Longyear, The M. W. Wright, 1 Brown's Adm. 290— make no fine distinctions in the mat- ter, but take the ground broadly, that the whole proceedings, as laid down in the Revised Statutes, are merely cumulative, and can be substituted for the old admiralty remedies before the statutes of 1790, or not, as the libellant chooses. We f eel disposed to f ollow these decisions, especially as the uni- form practice, as I am informed, has been to proceed in either way the sailor might deem most available to procure the payment of his wages. �As the libel has been amended so as to show the lapse of 10 days after the eaming of wages before suit brought, I shall order the case to be referred to United States Commis- sioner S. Rodmond Smith, to take testimony as to the amount of wages due, and report the same to this court. ��� �