VIANELLO V. THE QREDIT J"YONNAIS.
collision. This witness is not called, nor is any excuse for his nonproduction given. The presumption, therefore, is that his testimony would not support the libelant's case, and in such a conflict this pre· sumption is controlling. The libel is acc.:ol·dingly dismissed, and with costs.
THE liREDIT LYONNAIS.
(District Oourt, S. D. :New York.
March 8, 1883.)
ADMrRALTy-PRAOTICE-RULE 53-SECURITY. Rule 53 (formerly rule 54) in admiralty, providing
that security may be required of the respondents" whenever a cross-Jibel is filed upon any counterclaim arising out of the same cause of action for which the original libel was filed," is to be construed as embracing cases arising out of the same subjectmatter of dispute, when the question in litigation is substantially the same in both suits. The words" cause of action" are not used in this rule in the sense of the same identical legal demand.
2. SAME-SECURITY IN OROSS- SUIT. Where a libel is filed to recover an alleged deficiency of cargo delivered, and the payment of freight having been refused by the libelants on the same ground, a cross:libel is filed to recover the freight on the cargo delivered, and security having been obtained in the first suit through the I\rrest of the vessel, held, -that the respondents should be required to give security in tbe cross-suit, under rule 53.
In Admiralty. Wilhelmus for libelant. Oondert Brothers, for respondents. BROWN, J.. A motion is made in this case that the respondents file security under the present fifty-third (formerly fifty-fourth) rule of the supreme court in admiralty. The respondents were the of cedain iron imported from Europe upon the Italian bark Querini Stampalia, in December, 1881. The quantity of iron delivered being less than that described in the bill of the respondents refused to pay freight, and on December 31, 1881, filed their libel in this court to recover the value of the iron not delivered. Thereafter, on the same day, the present libelant, the master of the bark, filed this cross-libel against the respondents to recover the freight. In both actions the question iu dispute is same; namely, whAthElr the bark is responsible for the shortage of iron; no other matter being in controversy. In the respondent's suit the bark was
-&l"rested.and gave security fo.l'the claim 'antI costs. The libelant in this suit now asks for. ·simila·r security from the respon-dents, upon an affidavit that the respondents are a Iibn-residentcorporation, and have now no agent resident within this district. The motion is opposed upon the ground that the present libelant's counter-claim does not "arise out of the same cause of action for which the original libel was filed," within the language of rule 53; because, it is said, the cause of the action in the original libel is to recover the value of the iron not delivered; while the cause of action in the cross-libel is to recover payment of freight upon the iron that was delivered,. ' The objection is evidently based upon the ,contention that the words "same cause of action," in rule 53, mean the same legal demand orlegal claim. The words themsel"es, separately considered, might doubtless have that meaning; but if that meaning were adopted here, it would destroy, as it seems t,o me, all the force of .the rule; and, so far as I can see, render it incapable of application in any case. For I cannot recall any circumstances in 'which a cross-libel could be filed for the purpose of asserting against the original libelant a counter-claim arising out of the same identical legal demand or .the same legal claim as that sought to be enforced by the original libelant. The context itself shows that a different legal olaim is ,contemplated by this rule, for it refers to a "counter-claim," and not the same claim, "arising out of the same cause of aotion." I am satisfied that the words "the same cause of action" are here nsed in a more general sense, meaning the same transaction, dispute, or subject-matter which has been the cause of the action being brought, and that they include thosecasos of cross-libels where the question in dispute is identical in both, the defense in one suit being the ground of the claim in the other. It is just that in such cases ach sid(j should be similarly protected by security j and the original libelants having obtained security for their alleged claim by the arrest of the bark, they ought not to complain of being required to furnish security in turn upon the counter-claim. Such I think was the intention of this rule. The respondents suggest that the rule was designed to cover such cases as mutual claims upon collisions; but in that class of cases the cross-libel does not assert a counter-claim arising from the same identical legal demand. Each "'essel bases its claim for damages upon the alleged fault of the other; and that is the only ground of action by either. Suoh cases do not present so single and identical
639 aquesf;ionas libel and both, I have no designed to in the rule. doubt, In the case of Roberts v. RaUi, in the easterudiatl'ict, (not reported,) a case .essentially like this, ,security wag ,required. I am satisfied that this is the correct construction of ,the rule;. the motion is, therefore, granted,
,THE Fox.E. D. LouiBiana.January, 18B3'.)
The relation of a tow-boat to the to. pe .clu!-rged. in tow not such as to make
it iiable for the tolls due by said.vessels 'fot 'passing throuj/;h' a channel vated byprivate enterprise, and forwblcll. passage tolls are at'lowed by lltat1Jte
"That John Grant be, and beis bereby, authorized to ,enter upon and taKe possession of 80 much of the shoal or shell reef, situated. between Dauphin island anl;! Cedar Point, in the county of Mobile, as may be riecessary to cut or excavate a channel or channels of sufficient depth Iud wi4th to afford a good, safe inland pa.ssage for steam-boats and other vessels in· the trade between the waters of Mobile bay and other places on the Gulf of MexiCo, etc.; that, so soon, as said Grant shall have deepened or excavated a of sufficient <1epth and width to admit the passltge of steam-boats or other vessels draWing five feet of water, he shall be authorized to charge and receive, from all such boats or as may go in or out of said channel, a or tonnage duty at a rate-n<:lt to exceed 15 cents for each ton of the registefed measurement of Bllcbboat'or vessel, and any boat or other 'vessel that shall become liable for toll as aforesaid, whose captain, owner, or other person who may be iu charge. neglecting or refusing to pay the same for five dllys after the same shall have been demanded, shall be liable to be sued for the amountof the toll due, together with '50 per cent. damages, and said boat. or other. vessel and their owners shall be liable for the same, together with costs of suit, to be collected before any court of competent jurisdiction," etc.
In Admiralty. TJwmas and Denegre, for libelant. , E.M. HudsolJ, and J. Walker Pearn, for claimants. p J.' '.The legislature of Alabama . , . .
The libel in this case is prosecuted to compel the steamer Fox, which is a tug-boat of about 25 tons measurement, to pay tolls for 11 passages through the pass or canal built by John Grant under the
"'Heported by Joseph P. Hornor, Esq., of the New Orleans bar.