Page:Federal Reporter, 1st Series, Volume 9.djvu/485

 470 PEDBBAIj BEPOBTBB. �The prayer of the libel is as follows : �" Wherefore, the libellants pray that process in due form of law, aecording to the course and practice of this honorable court in cases of admiralty and maritirae jurisdiction, may issue against said vessel, her tackle, apparel, and furniture, and that all persons having any interest therein may be oitedta appear and answer all and singular the matters af oresaid ; that they may be compelled to issue a bill of lading for said goods to these libellants ahd procure a surrender of the bill of lading given to said Michel, and may indemnify the libellants against all loss and damage by reason of the issuing of said bill of lading to said Michel ; and that the said vessel may be con- demned and sold, ahd the libellants paid any damages they may sustain in the premises, with interest an4 costs, and may have such other and further relief as to law and justice appertain. �No exception bas been taken to the libel on the ground of incon- sistency in the relief prayed for, and under such a libel it is open to the libellants to take any decree warranted by the facts that may be •vrithin the scopeof his prayer. But it is said by the claimant the libel proceeds upon the theory of a right in the libellants to have a bill of lading of the goods, and therefore the action is simply an action for specifie performance. The libel, however, contains facts sufficient to sustain a decree for conversion, and the prayer is, among other things, that the vessel becondemned and sold to pay any damages suatained by the libellants by reason of the premises. I am unable, therefore, to hold that the only right set up in the libel is the right to have a bilL of lading. �Again, it is said, in behalf of the claimant, if the action be treated as an action for damages, the damages claimed are those arising from the failure to recoive a bill of lading, and not damages for con- verting the resin. But, as already pointed out, the facts set forth make a case of conversion, and the general prayer is to be paid dam- ages aceruing to the libellants out of the premises. It cannot, there- fore, be held that the method of framing the libel, objectionable as it certainly is, constitutes, in the absence of any exception, an insur- mountable obstacle to treating the action as based upon a maritime tort. It is not seen, therefore, that any legal objection standsvin the way of considering this case to be an action to recover damages for the conversion of the property in question, and as, upon the argument, the desire to have it so treated vas expressed, that course will be pur- sued, �This view of the case renders it unnecessary te determine whether a proceeding in rem against the ship can be resorted to to compel the ��� �