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be clearly proved before she can be called upon to contribute to the cost of the injury. The Caldy (D. C.) 123 Fed. 802; Id., 153 Fed. . 837, 83 C. C. A. 19; The Australia, 120 Fed. 220, 56 C. C. A. 568; The Fontana, 119 Fed. 853, 56 C. C. A. 365; The Umbria, 166 U.S. 404, 17 Sup. Ct. 610, 41 L. Ed. 1053.

A decree may be entered adjudging the Saratoga to be solely at fault, and appointing a commissioner to ascertain the damages.

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WINKLEY CO. V. BOWEN MFG. CO. et al.

(Circuit Court, N. D. New York. July 25, 1910.) 1. COUBTS ($ 357*)—SECURITY FOR COSTS_FEDERAL COUBTS.

A motion for security for costs in a federal court sitting in the Northern District of New York is governed by the provisions of Code Civ. Proc. N. Y, 3268, etc.

[Ed. Note. For other cases, see Courts, Cent. Dig. $ 938; Dec. Dig. $ 357.

State laws as rules of decision in federal courts, see notes to Wilson

v. Perrin, 11 C. C. A. 71; Hill y. Hite, 29 C. C. A. 553.] 2. COSTS (8 136*)—SECURITY FOR COSTS-LACHES.

Where a bill showed on its face that complainant was a nonresident and that defendant was entitled to security for costs, but no application was made therefor until some 18 months after issue joined, nor until after defendant had been taking proof for 8 months, to rebut plaintiff's prima facie case, defendant's right to security was waived by laches.

(Ed. Note.-For other cases, see Costs, Cent. Dig. 88 531-536; Dec.
Dig. & 136.*]
Action by the Winkley Company against the Bowen Manufacturing
Company and another. Motion to compel the complainant to give
security for costs. Denied.

Parsons, Hall & Bodell, for the motion.
Offield, Towle, Graves & Offield, opposed.

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RAY, District Judge. This cause-suit in equity for alleged infringement of a patent—has been at issue some 18 months, and for some 8 months the defendant has been taking proofs in answer to complainant's prima facie case. Many motions for extensions of time to take such proofs have been made, and now, when complainant has fixed a time in July when it will take proofs, the defendant makes this motion, and asks security in the sum of $2,500, with securities in New York state and a stay until such security is given. There is no pretense that the complainant is insolvent or unable to pay any judgment against it in case the bill is dismissed. The bill shows on its face that complainant is a nonresident of the state of New York, and was when the suit was commenced. The defendant has no new information bearing on the question whether complainant should file security for costs. I think this application comes too late, and that defendant should be held to have waived security for costs. In this district the matter is regulated by the provisions of the New York Code of Civil Procedure (section 3268, etc). See opinion Coxe, District Judge, *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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ZUBER V. MICMAC GOLD MINING CO.

625

Hugunin v. Thatcher (C. C.) 18 Fed. 105; rule 4, Circuit Court; rule
64, District Court; Conkl. Treat. (5th Ed.) 468; Lyman Vent. Co.
v. Southard, 12 Blatchf. 405, Fed. Cas. No. 8,633.

The defendant is entitled to security for costs in the sum of $250
as a matter of right when not guilty of laches in applying therefor.
See cases cited by Coxe, District Judge (now Circuit Judge), in above
case, and Willson v. Eveline, 39 App. Div. 129, 56 N. Y. Supp. 632;
Sims v. Bonner (Super. N. Y.) 16 N. Y. Supp. 800. In this case the
defendant claims it has now incurred expenses to the amount of $2,500,
not giving the items however, which are taxable in case the bill is dis-
missed. If the defendant had seasonably applied for security perhaps
the complainant would not have pressed the suit. I think it incumbent
on a defendant who desires security for costs of a nonresident com-
plainant to move seasonably after being informed of the facts, and that
if he does not he is deemed to have waived or lost the right. To now
grant this motion would prejudice the complainant by delaying the
taking of proofs. In Willson v. Eveline, supra, the court said:

“The right of the defendant to require the plaintiff, a nonresident, to give security for costs is absolute (Wood v. Blodgett, 49 Hun, 64 [2 N. Y. Supp. 304); Churchman v. Merritt, 50 Hun, 270 [2 N. Y. Supp. 843]), unless waived by laches.”

The other cases cited hold the same, and such is the rule in this district. It seems to me that a delay of 18 months and until defendants' proofs are completed in making the application is laches if any. thing can be so considered.

Motion denied.

ZUBER V. MICMAC GOLD MINING CO. et al.

(Circuit Court, D. Maine. August 8, 1910.)

No. 651.

1. RECEIVERS (8 3*)-GROUNDS OF RECEIVERSHIP-REMEDY INCIDENTAL TO OTA

ER RELIEF.

To justify appointment of a receiver, some proper final relief in equity must be asked for in the bill, which will justify the court in proceeding with the case, and a receivership cannot be considered final relief because the receivers may bring suits, and in that way obtain some ultimate re. lief.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. $ 3; Dec. Dig.

§ 3.*] 2. CORPORATIONS (8 557*)-PROCEEDINGS FOR APPOINTMENT OF RECEIVER-SUF

FICIENCY OF BILL.

A bill for a receiver for a mining company, alleging that certain persons owning a substantial majority of the stock in another company had fraudulently conspired to dispose of the property of such other company, and divide the proceeds among themselves, and bad fraudulently contracted to organize the company for which a receiver was asked, and to issue and divide the stock among themselves, and alleging that the issue of stock in the new company was fraudulent, and that such persons as officers

thereof bad fraudulently caused the stock to be sold to the public to se For other cases see same topic & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

180 F.–40

cure the purchase money to be paid to the old company, and alleging gross mismanagement of the new company, praying that the receivers be appointed to manage its property, bring suits against the old company to recover the fraudulently issued stock in the new company, and for an injunction against the new company from transacting further business, paying its debts or transferring its property, but not praying for a cancellation of the alleged fraudulent contract nor for the winding up of th corporation, nor for the aid of the court in putting back the parties as nearly as possible in the position in which the persons alleged to have acted fraudulently, had found them, nor for any specific relief, and not joining as parties such persons, though it prayed that a writ of subpæna might issue against them to make them parties if they should come within the jurisdiction, is insufficient as praying for no ultimate relief.

[Ed. Note.—For other cases, see Corporations, Cent Dig. $$ 2227–2236; Dec. Dig. $ 557.*]

In Equity. Bill by Michael Zuber against the Micmac Gold Mining
Company and others. Bill dismissed.

Lewis & Carpenter and Charles F. Johnson, for complainant.
Verrill, Hale & Booth, for respondents.

HALE, District Judge. This case now comes before the court on final hearing upon bill, answer, replication, and proofs. The complainant, a citizen of Maryland, brings this bill of complaint against two mining corporations, citizens of Maine. It alleges that Thomas W. Moore and certain associates, citizens of Massachusetts, owned a substantial majority of stock in the Micmac Mining Company, and that they fraudulently conspired with one Phil H. Moore to dispose of the property in that company for $166,666 and to divide the proceeds among themselves; that they entered into a certain fraudulent contract to organize a new company called the Micmac Gold Mining Company, and to issue and divide the stock among themselves. The bill alleges that the issue of the stock in this new company was fraudulent; that Thomas W. Moore and his associates, as officers of the new company, fraudulently caused stock to be sold to the public for the purpose of securing the purchase money to be paid to the old company. The bill further alleges gross niismanagement of the Micmac Gold Mining Company, and prays that receivers be appointed to manage its property, and to bring suits against the Micmac Mining Company, its officers and stockholders, for the purpose of recovering the fraudulently issued stock in the new company. It prays also for an injunction against the Micmac Gold Mining Company from transacting any further business, or paying its debts, or transferring any of its property; and generally for other and further relief. The bill does not pray for a cancellation of the alleged fraudulent contract nor for the winding up of either corporation, nor for the aid of the court in putting back the parties as nearly as possible in the position in which Thomas W. Moore and his associates found them, nor for any specific relief; nor does it join as parties Thomas W. Moore and his associates; although it prays that a writ of subpæna may issue against them to make them parties if they should come

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*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

in the jurisdiction. Both the pleadings and the proofs disclose arp controversy on questions of fact. Before passing upon these stions it is the duty of the court to consider the character of the

now before it. Its whole purpose is manifestly to obtain a rejer. In this district, in Hutchinson v. American Palace-Car Co.

C.) 104 Fed. 182, 185, Judge Putnam has stated the three essential nditions, compliance with which is necessary to justify the appointent of a receiver: "First, that the case be fairly within the jurisdiction of the court having view both the limited jurisdicton of federal tribunals and the true nature

proceedings in equity; second, that some proper final relief in equity be sked for in the bill which will justify the court in proceeding with the case ; nd, third, that the circumstances calling for a receiver be of a clear and urgent character."

Judge Putnam further observes that upon application for receivership, even though the parties have already agreed upon a receiver, the court is not relieved from looking at the question of jurisdiction, and from inquiring whether the application for receivership is really with the view of obtaining final relief, or merely for the purpose of securing a receivership for the mere sake of a receivership. He adds that, when the subject-matter is of itself of an equitable nature, certain conditions which might be availed of to defeat jurisdiction may be waived, citing Hollins v. Iron Company, 150 U. S. 371, 14 Sup. Ct. 127, 37 L. Ed: 1113. But I find no conditions stated in that case which affect in any way the questions now before me. In the case at bar there is no final relief asked for in the bill. A receivership cannot be held by this court to be final relief; and it cannot be made final by the suggestion that the receivers may bring suits, and in that way obtain some ultimate relief. The purpose of a receivership in equity is to be ancillary to, and in aid of, the primary object of the litigation. It cannot be the primary object of the litigation. The final relief sought by the bill cannot be made contingent upon the incidental relief of a receivership. Many cases have held that where the complainant has prayed for some final relief, and it is found that he is not entitled to the specific relief prayed for, he may nevertheless have other relief consistent with the proofs.

In the case before me there is no ultimate relief prayed for. Although the attention of counsel was expressly called to this matter at the final hearing, they have failed to point out any proper ultimate relief which this court can grant, even though their allegations of facts should be found to be true. And it is not evident from the pleadings, or from the proofs, what final relief could properly be asked for. In the present aspect of the case it is not fitting to enter upon the discussion of the proofs, or to decide whether or not they sustain the allegations of the bill; nor is it necessary to decide whether the bill presents all the parties affected by the subject-matter in controversy, or whether a decree for full and final relief could be passed with the present parties to the bill; nor is it necessary to pass upon other defenses raised by the learned counsel for the respondents. The court can only pass upon the bill as it finds it. In view of the rule an

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nounced by Judge Putnam in the Hutchinson Case, and in accordance with general equitable principles, I must hold that the bill before me does not contain such prayer for proper final relief as will justify the court in proceeding with the case.

The bill is dismissed, with costs for the respondents.

THE SCOUT.

THF A. W. SMITH.

(District Court, E. D. New York. July 21, 1910.) SALVAGE ($ 7*)—COMPENSATION-ASSISTING VESSEL AFTER COLLISION.

Awards in the nature of salvage made for services rendered to a steam yacht after collision, and when she had been abandoned by her crew, while still under steam with her engines reversed, in keeping her afloat, and preventing further collisions with other vessels.

[Ed. Note.--For other cases, see Salvage, Dec. Dig. $ 7.*

Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.) In Admiralty. Suits by Bartin Haigh and William Deviling by Peter Cahill, and by George F. Barnes against the steam yacht Scout, and by August Belmont and others against the steam tug A. W. Smith. Decrees against the Scout. Libel against the Smith dismissed.

Peter S. Carter, for plaintiffs Haigh and another.
Foley, Martin & Nelson, for plaintiff Cahill.
Kneeland & Harison, for plaintiffs Belmont and others.
MacFarland, Taylor & Costello, for plaintiff Barnes.
Kneeland & Harison, for The Scout.
Harrington, Perkins & Englar for The A. W. Smith.

CHATFIELD, District Judge. The Scout was injured while entering the gateway of the Erie Basin, at high speed. The actual blow was occasioned by the movements of the Scout under a reversed engine, the captain of the Scout, immediately upon the imminence of collision, assuming that it was his duty to reverse. While perhaps he cannot be blamed for forming that conclusion under the circumstances, nevertheless the fact that his actions seem to have made the collision inevitable is sufficient to relieve the Smith, there being no negligence on the Smith's part prior to the time when the engines of the Scout were reversed. For that reason the libel against the Smith must be dismissed.

The injuries to the Scout by reason of the collision caused her to settle by the head, but her watertight bulkheads did not give way and she remained afloat, moving rapidly astern under the reversed engine, in such a direction as to pass entirely around the Smith and into the Basin. Her speed astern was such as to carry her entirely across the Erie Basin and into collision with the steamer Luckenbach before she could be reached by any one. In the meantime the crew had climbed •For other cases see same topic & & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexen

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