27th. Until about 8 o'clook that night, it was not known that the vessel was leaking; but on sounding the pumps at that time, it was found that the vessel had two feet of water in the hold. The pumps were manned and kept going, but the leak increased two feet in about two hours. The jettison was then made, and the vessel so far relieved that the pumps could control the leak, and the vessel, with the residue of the cargo, arrived at New Orleans. It is manifest that the vessel encountered extraordinary action of the sea; and as the vessel appears to have been new, and generally stanch and well fastened, the defects found at New Orleans, except the worm holes, are fairly at tributable to this cause. The starting of a but, and the opening of the hood ends of a new vessel of ordinary strength indicate a very uncom mon degree of strain; and such defects would alone account for the amount of leakage of a vessel heavily laden, and exposed to such a sea as is described. We do not think the existence of the worm holes amount to unseaworthiness. Any leak which might have been occasioned by them in any ordinary sea, does not appear to have been such as the pumps could not control, without damage to the cargo. All vessels have leaks; and independent of the strains received from the violent action of the sea, we are not satis fied that this vessel would have leaked so much that the pumps could not have controlled the water in her hold, and prevented its doing damage to the cargo. We find, therefore, that the vessel is exonerated from the ciaim for the full value of the merchandise; and the remaining question is, whether the vessel is chargeable with any part of the value of the merchandise in this cause. to contribution in general average is dependent on the contract of affreightment, which embraces in effect an undertaking, that if the goods of the shipper are damaged for the common benefit, he shall receive a due indemnity by contribution from the owners of the ship, and of other merchandise benefited by the sacrifice. The power and duty of the master to retain and cause a judicial sale of the merchandise saved, has also been long established. Consulado del Mare, ch 51, 52, 53, and note 1 in Vol. III., p. 103 of Pardessu's Collection; Laws of Oleron, art. 9; Ord. de la Marine, Liv. 3, tit. 8, secs. 21, 25; Nesbit on Ins., 135; Strong v. New York Fireman's Insurance Com pany, 11 John. 353; Simonds v. White, 2 B. & C., 805; Loring v. Neptune Insurance Compa ny, 20 Pick., 411 3 Kent's Com., 243, 244. And this right to enforce a judicial sale, through what we term a lien in rem, is not confined to the merchandise, but extends to the vessel. Emerigon (ch. 12, sec. 43), speaking generally of an action of contribution, says it is in its nature a real action. Cassaregis (dis. 45, N. 34), “est in rem scripta." It would be extraordinary if the right to a lien were not reciprocal; if it existed in favor of the vessel, when sacritice was made of part or the whole of its value for preservation of the cargo, and not against the vessel, when sacrifice was made of the cargo for preservation of the vessel. By the ancient admiralty law, the master could bind both the ship and cargo by an express hypothecation, to obtain a ransom on capture. So he could, and still may, when the whole enterprise has fallen into distress, which could not otherwise be relieved, hypothecate both the vessel and cargo to obtain means of relief. These are cases of express hypothecation When a lawful jettison of cargo is made, and the vessel and the remaining cargo are thereby relieved from the impending peril, and ultimade by the master, under the authority conmately arrive in the port of destination, though the shipper has not a lien on the vessel for the value of his merchandise jettisoned, he has a lien for that part of its value which the vessel and its freight are bound to contribute towards his indemnity for the sacrifice which has been made for the common benefit. And this lien on the vessel is a maritime lien, operating by the maritime law as a hypothecation of the vessel, and capable of being enforce by proceedings in rem. The right of the shipper to resort to the vessel for claims growing directly out of his con tract of affreightment, has very long existed in the general maritime law. It is found asserted in a variety of forms in the Consulado, the most ancient and important of all the old codes of sea laws (see chaps. 63, 106, 227, 254, 269), and the maxim that the ship is bound to the merchandise, and the merchandise to the ship, for the performance of the obligations created by the contract of affreightment, is a settled rule of our maritime law. The Schooner Freeman, 18 How., 182; The Ship Packet, 3 Mas., 261; The Volunteer, 1 Sumn., 550; The Reeside, 2 Sumn., 567; The Rebecca, 1 Ware, 188; The Phabe, 1 Ware 263; The Waldo, Davies, 161; The Gold Hunter, 1 Blatchf. & How., 305. Pothier declares (Treatise of Charter-parties, preliminary chapter on Average) that the right ferred on him by the maritime law; but he can also sell a part of the cargo to enable him to prosecute his voyage, or deliver a part of it in payment of ransom of his vessel, and the residue of the cargo, on capture; and when he does so, the law of the sea creates a lien on the vessel as security for the reimbursement of the loss of the shipper whose goods have been sacrificed. The Packet, 3 Mas., 255; Pope v. Nickerson, 3 Story, 492; The Gold Hunter, 1 Blatchf & How., 300; The Boston, Ib., 309; Consol. del Mare, ch. 105; Laws of Oberon, art. 25; Ord. of Antwerp, art. 19; Emerigon Con. a la Grosse, ch. 4, secs. 9, 11. The authority to make a jettison of cargo is derived from the same source; an instant necessity, incapable of being provided for save by a sacrifice of part of what is committed to the master's care, and the presumed consent of the owners of all the subjects at risk, that the loss shall become a charge upon what is benefited by the sacrifice. The Gratitudine, 3 C. Rob., 240. If the sacrifice be made to enable the vessel to perform the voyage, by paying what the owners are bound to pay to complete it, the charge is on the vessel and the owners. If it be made to relieve the adventure from a peril which has fallen on all the subjects engage in it, the risk of which peril was not assumed by the carrier, On full consideration, we are of opinion that when cargo is lawfully jettisoned, its owner has, by the maritime law, a lien on the vessel for its contributory share of the general average compensation, and that the owner of the cargo may enforce payment thereof by a proper proceeding in rem against the vessel, and against the residue of the cargo, if it has not been de the charge is to borne proportionably by all the | not be enforced by an action in personam interests, and there is a lien on each to the ex- against the consignee, in the admiralty. This tent of its just contributory obligation. This admits the existence of a lien, arising out of authority of the master to make the sacrifice, the admiralty law, but puts it on the same footand this consent of the owners of the subjects ing as a maritime lien on cargo for the price of at risk to have it made, and their implied un- its transportation; which, as is well known, is dertaking to contribute towards the loss, are waived by an authorized delivery without inviewed by the admiralty law as sufficient to sisting on payment. create an hypothecation of the subjects benefited, for the security of of the payment of the several sums for which those subjects are respectively liable. In other words, as the master is authorized to relieve the adventurer from distress, by means of an express hypothecation, in case of capture or distress in port, or by means of a sale of a part of the cargo, thereby creating a maritime lien on the property ulti-livered. mately benefited, in favor of the owner of what is sold or hypothecated; so he may also, in a case of necessity at sea, make a jettison of cargo, and thereby create a lien on the property thus saved from peril. Pothier (Con. Mar., n., 34, 72) and Emerigon (Con. a la Grosse, ch. 4, sec. 9) say that the sale of part of the cargo in port, to supply the necessities of the ship, is a kind of a forced loan. Though the sacrifice of part of the cargo at sea cannot be considered a loan, it is a forced appropriation of it to the general benefit of those engaged in a common adventure, under a contract of affreightment; and such use of the property of one, for the benefit of others, creates a charge on what was thus saved, for what may fairly be termed the price of that safety. Abb. on Ship., part 4, ch. 10, sec. 6. In United States v. Wilder, 3 Sumn., 311, which was a case of general average, Mr. Justice Story likens it to a case of salvage, where safety is obtained by sacrifices of labor and danger, made for the common benefit; and he says the general maritime law gives a lien in rem for the contribution, not as the only remedy, but as in many cases the best remedy, and in some case the only remedy. In the District and Circuit Courts of the United States this jurisdiction has been exercised, and some cases of this kind are found in the books; though most of their decisions are not in print. The Mary, 5 Law R., 75; 6 Law R., 73; The Cargo of the George, 8 Law R., 361; Sparks v. Kittredge, 9 Law Rep., 349; Dunlap's Add. Pr., 57; 2 Browne's Civ. and Ad. Law, 122; The Packet; The Gold Hunter; The Boston. above cited. The restricted admiralty jurisdiction in England seems insufficient to enforce this lien. The Constancia, 2 W. Rob., 487. Nor is there anything in the case of Cutler v. Rae, decided by this court in 1849, and reported in 7 How., 729, which conflicts with the view we have now taken. That was a libel by the owner of a vessel against the consignee of cargo, to recover the contributory share of the average due from the goods which the master had voluntarily delivered to the respondents before the libel was filed. The court decided, that though the master, as the agent of the owner of the vessel in that case, had by the maritime law a lien upon upon the goods, as security for the payment of their just contribution, this lien was lost by their voluntary delivery to the consignee; and that the implied promise to contribute could The remaining question is, whether the pleadings in this case are in such form as to present this claim for the consideration of this court, and entitle the libelant to assert a lien on the vessel for its contribution. The rules of pleading in the admiralty are exceedingly simple and free from technical requirements. It is incumbent on the libelant to propound with distinctness the substantive facts on which he relies; to pray, either specially or generally, for the relief appropriate to them; and to ask for such process of the court as is suited to the action, whether in rem or in personam. It is incumbent on the respondent to answer distinctly each substantive fact alleged in the libel, either admitting or denying, or declaring his ignorance thereof, and to allege such other facts as he relies upon as a defense, either in part or in whole, to the case made by the libel. The proofs of each party must correspond substantially with his allegations, so as to prevent surprise. But there are no technical rules of variance, or departure in pleading, like those in the common law, nor is the court precluded from granting the relief appropriate to the case appearing on the record, and prayed for by the libel, because that entire case is not distinctly stated in the libel. Thus, in cases of collision, it frequently occurs that the libel alleges fault of the claimant's vessel; the answer denies it, and alleges fault of libelant's vessel. The court finds, on the proofs, that both were in fault, and apportions the damages. Looking to this libel, we find it states that a contract of affreightment was made to transport these goods from Wilmington to New Orleans, on board this brig; and the goods were laden on board and the brig had arrived, but only a part of the goods have been delivered. It states the value of the part not delivered, avers that the libelants have not been paid any part of that sum, prays for process against the brig, and a decree for the value of the merchandise not delivered, and also for such other relief as to law and justice may appertain. The answer admits all the facts stated in the libel, but sets up, by way of defensive allega. tion, a necessary jettison of that part of the cargo not delivered. It is manifest, that though this answers, in part, the claim for damages made by the libel, it does not wholly answer it. It shows sufficient cause why the libelant should not assert a lien on the brig for the whole value of his merchandise, but at the same time shows that the libelant has a valid lien on the brig for that part of the value of the merchandise which the vessel is bound to contribute. While it asserts that the performance of the contract of affreightment by transportation of the merchandise to New Orleans was excused by a peril of the sea, it admits that an obligation arose out of the relations of the parties created by that contract of affreightment, and out of the facts relied on as an excuse for not transporting the merchandise; that this obligation was to pay to the shipper a part of the value of his goods; that it was the duty of the master, at the port of New Orleans, to ascertain what part of that value the vessel was bound to contribute, and that there is a lien on the vessel to secure its payment. If the technical rules of common law plead ing existed in the admiralty, there might be difficulty in admitting a claim for general average, in an action founded on a contract of affreightment; because, though the claim for such average grows out of the contract of affreightment, the implied promise to pay it is technically different from the promise on the face of a bill of lading. In the case of Pope v. Nickerson, 3 Story, 465, Mr. Justice Story went into a very extensive examination of such claims, under an agreed statement of facts, in an action of assumpsit on bills of lading; and it does not seem to have occurred, either to him or the counsel, that it was inconsistent with any substantial rule of the common law so to do. But in the admiralty, as we have said, there are no technical rules of variance or departure. The court decrees upon the whole matter before it, taking care to prevent surprise, by not allowing either party to offer proof touching any substantive fact not alleged or denied by him. But where, as in this case, the defensive allegation of the respondent makes a complete case for the libelant, so that no evidence in support of it is required, and where that case is within the form of action and the prayer of relief, and the process used by the libelant, we think it not a sufficient reason for refusing relief, that the precise case on which the court think fit to grant it is not set out in the libel. cree, and direct the account. The latter is deemed the more equitable course. The decree therefore, is to be reversed, and the cause remanded, with directions to take an account of the profits of the jewelry store, if the same shall be demanded by the plaintiff." But, as the libelants failed to call the attention of the Circuit Court to this view of their rights, and placed their claim there solely on the grounds that the jettison was unlawful, or, if lawful, could not be a defense, because the master had failed to be the duty incumbent on him in a case of general average, we think the decree should be reversed without costs. The cause must be remanded to the Circuit Court, with directions to ascertain the amount of the lien of the libelants on The Ann Elizabeth, for the share to be contributed by the vessel towards the loss sustained by the libelants, and to enter a decree accordingly. Mr. Justice Campbell, dissenting: I dissent from that part of the opinion of this court which allows to the libelants a decree against the libelee for the amount of his contributory share in the account of average. The libel is for the non-delivery of cargo according to the conditions of a bill of lading. The exemption claimed in the answer is, that the failure was occasioned by a peril of the seas, which made a jettison of the goods necessary; and this issue was tried in the District and Circuit Courts. The objection raised here is, that the exemption is not complete, unless the contributory share of the libelee, to be ascertained, in the first place, by the adjustment of an average account, is also admitted and tendered. In Bird v. Astcock, 2 Bulst., 280, which was an action on the case against a carrier for the non-delivery of goods lost by a jettison, Coke, Lord Ch. J., cited a case which had been decided, and said, in respect to it: We all did resolve, that this being the act of God, this sudden storm, which occasioned the throwing over of the goods, and which could not be avoided; and for this reason the plaintiff recovered nothing.' Mouse's case, 12 Co., 63. I have not been able to find a precedent, either in the United States or Great Britain, where a contributory share, in the nature of average, has been recovered, in a contentious litigation, in an action on a bill of lading for the non-delivery of cargo. But the books of precedents show that average contributions are recovered in actions either of special or general assumpsit, the form of the action depending on the fact of the adjustment of the account. 2 Chitt. Plead., 50, 152, 161; Saund. Plead. & Ev., 278. We understand, that in the court below the libelants relied on the duty of the master to adjust and collect, and pay to them, the general average contributions, as precluding the defense of a necessary jettison. We think this defense was properly overruled. The libelants did not there insist on their lien on the vessel for its contribution. We do not consider their failure to do so precludes them from calling on this court to make that decree, to which the record shows they are entitled. In Finley v. Lynn, 6 Cranch, 238, this court was of opinion that "I entertain a decided opinion," said Chanthe appellant, whose bill was dismissed by the cellor, then Ch. J., Kent, that the established Circuit Court, was entitled to an account, on a principles of pleading, which compose what ground not assumed in the Circuit Court. This what is called its science, are rational, concise, court said: "The plaintiff probably did not ap- luminous, and ought, consequently to be very ply for this account in the court below, and it carefully touched by the hand of innovation." does not appear to have been a principal object Bayard v. Malcolm, 1 Johns., 471. And the adof his bill. This court therefore doubted vantage of an orderly, not to say scientific syswhether it would be most proper to affirm the tem of administration, is as apparent in the decree dismissing the bill, with the addition courts of admiralty, and the mischiefs of uncerthat it should be without prejudice to any tainty or inexactness are as positive there, as in future claim for profits, and for the debt due any other tribunals. Such seems to have been the from one store to the other, or to open the de-opinion of Justice Story. The Boston, 1 Sumn., 328. This difference in opinion with the court would not have been the ground of a public dissent on my part, if I had not deemed the decree erroneous, and if I did not believe that the parent error is to be found in this departure from accurate pleading. The decree treats the liability of the master or owner for an average contribution as an integral part of their special written contract of affreightment; and their failure to pay their share of average is disposed of as a breach of the express obligation. My opinion is, that the obligations are distinct, though intimately associated, and are referable to different principles of law, and in the judicial administration of the United States may be subject to distinct jurisdictions. The principle of the rule of general contribution, as applied to the case of a jettison, exists in all commercial nations, and the rule itself became a part of the statute law of England, in the reign of the Conqueror, and that of his youngest son. In a later period, the same principle was applied to a great number of analogous cases. The inquiry is, upon what courts was the duty devolved of enforcing and administering this principle of general jurisprudence, and particularly in the cases of average. In Birkley v. Presgrave, 1 East., 220, which was a special action of assumpsit for average on an unadjust ed average account, Lord Kenyon says: This action, the grounds and nature of which are fully set out in the special count, is founded in the common principles of justice. A loss is incurred, which the law directs shall be borne by certain persons in their several proportions. When a loss is to be repaired in damages, where else can they be recovered but in the courts of common law? And whereever the law gives a right, generally, to demand payment of another, it raises an implied promise in that person to pay." In Dobson v. Wilson, 3 Camp., 480, Lord Ellenborough said: "A court of equity may perhaps be a more convenient forum for adjusting the claims of the different parties concerned; but if a shipper of goods, which are sacrificed for the salvation of the rest of the cargo, is entitled to receive a contribution from another shipper whose goods are saved, I know not how I can say this may not be recovered by an action at law. This is a legal right, and must be accompanied with a legal remedy. The difficulty of showing, by strict evidence, the exact amount of the contribution is great; but, as there are data upon which it may be calculated with great certainty, I think, is no objection to the action." Price v. Noble, 4 Taunt., 123. Holroyd, in the argument of the case in East., said: "At the common law, where a contribution was required, a writ of contribution issued, precedents of which are to be found. Fitz. Nat. Brev. This has fallen into disuse; because, in most instances, as many persons were concerned, a more easy remedy was administered in equity." And so, from the earliest of the chancery reports, we learn that chancery will enforce an average or contribution to be made, when necessary, and that it will enforce an agreement among merchants to pay average. Comyns' Dig., Chan. 2 J., 2 S.; Hick v. Palington, F. Moore, 297; Ca. Parl., 19. Spence, in his his tory of equitable jurisdiction, says: "That the court of chancery, from a period which cannot be traced, but which, as it was also apparently adopted from the Roman law, was probably coeval with the establishment of the court, exercised jurisdiction to compel contribution amongst general shippers of goods, when those belonging to one were thrown overboard for the safety of the ship, or in cases, as they are technically called, of general average." 1 Spence Eq. Jur., 663. The popular treatises on the chancery system show that the title "Contribution" is one of great reach, comprehending a variety of cases which rest upon a familiar maxim of equity, and that average is only an instance of its application. How stands the historical evidence in regard to the jurisdiction of the admiralty courts, with reference to this subject? What say the "Black Book" and "Godolphin," or the coutroversionalists, Prynne, or Jenkins, in support of the ancient claims of these tribunals? What is to be found in the treaty of limits between the courts of common law and admiralty? In the case of The Constancia, 2 W. Rob., 488, a question arose upon the distribution of the proceeds of a ship and cargo which were on deposit in the registry of the court, in a cause in which its jurisdiction was indisputable. The claimant asserted a preference in the distribution, because a portion of the cargo belonging to him had been sold for the repairs of the ship. The learned judge of that court said: "As far as my own experience extends, no claim of a similar description is to be found in the annals of the court; a circumstance which naturally induces me to consider with some carefulness whether the novelty of the claim be specious or real. In other words, whether, novel in appearance, it does not rest upon some recognized principles by which other claims have been decided. What, then, is the true character of the claim in question? It is a claim on behalf of the owners of certain property shipped on board of the vessel, and applied to relieve the ship's necessities, and to enable her to complete her voyage. "In the case of The Gratitudine, 3 C. Rob., 240, Lord Stowell has held that property so sacrificed is to be considered as the proper subject of general average; and Lord Tenterden, in his book on shipping, lays down the same doctrine. If this be so, and if, upon the authority of my Lord Stowell, thus confirmed by my Lord Tenterden, I am to consider this claim as a subject of general average, two considerations immediately suggest themselves. First, whether I have any jurisdiction at all over questions of general average; and second, whether I could satisfactorily exercise such a jurisdiction under the circumstances of this case. The absence of any precedent, where the court has exercised the jurisdiction, is of itself strong prima facie proof that I have no authority to entertain the question at all; and I am the more strongly inclined to this opinion, by the further consideration that, in all cases of average, it is essential that the tribunal which is to adjust it should have the power to compel all parties interested to come in, and to pay their quota. I possess no such power; and if I could not bring all parties interested before the court, I could not adjust a general average, which is a proportionate contribution by all." These citations from the opinions of the various tribunals which administer different departments of the judicial power of Great Britain, show that the doctrine upon which average contributions is made, is not peculiar to the maritime code; and, also, that the maritime courts of the first commercial power that has existed have never administered it, and their judges suppose their modes of proceeding unsuitable to it. In the case of The Constancia, the res was in the custody of the Court of Admiralty, yet that court denied the existence of a maritime lien, or that any liability of the freighters against the ship could be enforced there. And this is equally apparent from the doctrines of the courts of chancery and law. In Hallett v. Bousfield, 18 Vesey, Jr., 187, which was the case of a shipper whose property had been overthrown to lighten a ship in a storm, and who moved to restrain the mas ter and ship owner from delivering any part of the cargo and receiving the freight, or parting with any share of the ship, Lord Eldon said, "that in such a case there is a lien upon the goods of each freighter, for contribution aud average, in some sense; that is, the master is not bound to part with any part of the cargo until he has security from each person for his proportion of the loss; but there is no author ity, that on the ground that he has a lien to the extent of entitling him to call on every person to give security for the amount of their average when it shall be adjusted, every owner of a part of the cargo can compel the captain to do so; and it strikes me, upon the short time I have had to consider it, that is a length the plaintiff cannot reach. The defendant, it is true, is a trustee for others, but the nature of the trust is regulated by the practice; and there is no instance of an action, or a suit in equity, to effectuate the lien, otherwise than through the right of the master to take security; that practice ascertaining the true nature and extent of the trust." This lucid statement of the English law explains the meaning of the older class of writers on commercial law, when they speak of the master's lien, and his duty to settle an average account. Valin observes, that the article of the Ordinance of 1681, which confers a right of detention upon the master, does not impose an im perative obligation upon him, and that he may deliver to each freighter his goods, without fear of consequences, unless specially required to withhold them. And other writers concur in the opinion, that the freighters, under that ordinance, had no action against one another. Boucher, Droit Mar., 450, 451. Lord Tenterden cites this case from Vesey, Jr., without dissent, in his work on shipping, Abb. on Ship., 508; and in Simonds v. White, 2 B. & C., 805, he describes the power of the master over the goods "as a power of deten tion," given in order that the expense, inconvenience and delay of actions and suits, may be avoided. This court, in Cutler v. Rae. 7 How., 729, declared that the party entitled to contribution has no absolute and unconditional lien upon the goods liable to contribute.' The captain has a right to retain them until the general average with which they are charged has been paid or secured; and, that this right of retainer, is a "qualified lien, dependent on the possession of the goods by the master or ship owners," and "ceases when they are delivered to the owner or consignee;" "and does not follow them into their hands, nor adhere to the proceeds;" and a corresponding opinion of Lord Tenterden is to be found in Scaife v. Tobin, 3 Barn, & Ad., 523, in which he says, a consignee who is the absolute owner of the goods is liable to pay general average, because the law throws upon him that liability; but a mere consignee, who is not the owner, is not liable." And this demonstrates that the lien for average is not a maritime lien. A maritime lien does not include or require possession. The claim or privilege travels with the thing, into whosesoever possession it may come. It is inchoate from the moment the claim or privilege attaches, and when carried into effect by legal process, by a proceeding in rem, relates back to the period when it first attached. Harmer v. Bell, 2 L. and Eq., 63. These cases show, that neither in the adjudications in the courts of Great Britain or the United States, nor in the usages of their merchants, is there any sanction for the doctrines of this decree. No adjudication during sixty years of our history is to be found, where the power to adjust or to collect an average acaccount is affirmed, or has been exerted by the district courts sitting in admiralty, upon direct application to them for the purpose. The importance of the subject will justify me in an examination of the continental authorities, which are supposed to establish the exist ence of a maritime lien for contribution. The ancient codes do nothing more than recognize the existence of a rule of contribution in regard to losses arising from a jettison, or cases of a similar character, and the masters' power of detention of the cargo saved, for the security or payment of the contributory shares, but they do not ascribe any greater operation to the rule, either in affecting property or in designating the jurisdictions to which the enforcement of the rule should be committed. The leading authority cited for the doctrine, that average affords a maritime lien on the property saved, is found in a line of Emerigon, who says, "the action in contribution is real in its nature." But that author discriminates the feature in a real action to which the action in contribution has any resemblance, The feature is, "that the action vanishes if the effects saved by means of the jettison, perish before arriving at their destination." The real action is for a thing, or to assert some right in it, and is terminated by its surrender, or destruction without the fault of the possessor. So long as the ship and cargo are exposed to peril in the same voyage, in which the the jettison is made, the action in contribution is inchoate, and dependent on the ultimate safety of the thing; and thus far it resembles a real action. But when the safety of the ship and cargo is confirmed, the liability of the contributories becomes personal, and the sums due are recoverable without further reference to them; in France, by action in contribution; and in England, by a bill in equity for contribution, or action of assumpit. It is a great mistake to |