A contract was made between the libelant and the claimants, for the transportation of passengers on vessels belonging to the claimants. The contract was a maritime one, but wholly executory, and no performance of it had been entered upon. The libelant has sued in rem for a breach. The vessels were attached under process, and released on bond. The claimants have appeared by their proctor only to except to the libel, and to object to the jurisdiction of the court. They have put in no answer. It is conceded that no lien exists on the vessels, and application is now made by the libelant’s proctor for leave to amend the libel, by praying process and judgment in personam against the owners.
It has been decided in this circuit that proceedings in rem and in personam cannot be joined in the same libel, except as provided for in the supreme court rules in admiralty. The Alida, 12 Fed. Rep. 343. The present case does not fall within any of the exceptional provisions. It was held in The Monie A., 12 Fed. Rep. 338, that such amendment could not be allowed whore, under the rules, both remedies could not bo conjoined in the same libel. In that case the owner had appeared, and put in bis answer, and much testimony had been taken before it was discovered that no lien existed upon the vessel; and at the hearing, under the peculiar state of the pleadings and evidence, the libel-ant was permitted to amend, and proceed in personam. It has been said (under a semble) to be the practice of the admiralty court in some cases ■—in suits in rem, where the record shows a clear right to recover in personam, against one who has appeared and contested the suit—to allow the libelant to proceed to a decree in personam, (The Zodiac, 5 Fed. Rep. 222;) but the case at bar does not belong to that class.
Exceptions sustained, motion to amend refused, and ordered that a decree be entered dismissing the libel, with costs.