Page:Federal Reporter, 1st Series, Volume 6.djvu/844

 882 FEDESAIi BEPOBTEB. �George Chose, for the motion. �La Roy S. Oove, contra. �Choatb, D. J. I am satisfied that the praetice of this court does uot authoriz6 the dismissal of a libel uuder raie 136*" for the libellant'a delay in bringing the cause to a hearing after issue joined. The claimant bas an equal right under rule 123t to move the case. On inquiry as to the praetice I leam that such bas been the construction put upon this rule here- tofore. Therefore, although there has been delay which woula long ago have barred the claim for staleness if suit bad not been brought, or entitled these daimants to a dismissal if libellant had not taken out process ; yet rule 123 has at ail times put it in the power of the claimant to put an end to the delay. Though it seems that similar rules have elsewhere been differently construed, and though the libellant's delay is extraordinary, yet it would be unjust to dismiss his libci consistently with the construction which bas bitherto pre- yailed in this court. �Motion denied. �*Ruo! 136. If the promovent in a libel or information neglects to pro- ceed in the cause with the dispatcli the course of the court demanda, the respondent or claimant may have the libel or information dismissed on motion, unless the delay is by order of the judge, or the act of the respond- ent or claimant. �tRuLB 123. So soon as issue is joined the respondent or claimant may notice a cause for hearing on his part, and be thereupon entitled to a decree dismissing the same, with costs, or such other decree as the case may demand, unless the libellant shall also notice the cause for the same time and proceed to trial or hearing, or obtain a continuance by order of the court ou proper cause shown. ��� �