smfibed mayr:reasonably, be teferred'to to: mitigate the severity of the act' in its application to masters of vessels. The demurrer is overruled.
LETTERS, ROGATORY FROM
Oourt,S:'». NeUJ fork. August 1,1888.)
DEPOSITION-LE1-TERS ROGATORy--Rmv.ST. U. S.
§ 4071. Letters rogatory from the first district judg'e of Vera Cruz, Mexico. stating that for the purpose of clearing up the, details of a certain importation, he has made a decree directing the issue of letters rogatory, which decree purpotts to have ,been made in proceedings relating to an in-vestigation as t() the smuggling of"certain cotton, do n()t show that amount to a "suit for the recovery of money or property" WIthIn the meanIng of Rev. St. U. S. 4071, providing that the testimony of any witness residing in the United States may be obtained by commission or letters rogatory, to be used in a suit for the recovery of money or property depending in, any cOllrt in a foreign country when the government of that country is a party, or interested in the suit, and 'do not warrant an order directing the attendance of a witness to answer the interrogatories.
On Motion to Set Aside an Orderdirecting the attendance of a witness. Olcott, Mestre k Gonzalez" for Mexican Government. 'LowiJJ Sanders, for witness. ' LACOMBE, J. The order heretofore made for the attendance of the witness was based on letters rogatory from the first district judge of Vera Cruz, stating that, "for the purpose of clearing up the details of" a certain importation, he has made a decree directing the issue of letters rogatory to the federal judge at the city of New York. This decree purports to have been made "in the proceedings relating to the investigation that [he is] making as to the smuggling of some cases of cotton." A motion is now made to set aside the order. The only authority for directing ,the attendance of the witness to which attention has been called is found in section 4071 of the Revised Statutes of the United States. It is therein provided that the testimony of any witness residing in the United States may be obtained by commission or letters rogatory} to be used (a) in a suit for the recovery of money or property; (b) depending in any court in a foreign country, with which the United States are at peace; (c) where the government of that country is a party to such suit, or interested therein. It does not appear, either by the letters, the petition of the Mexican consul general, or even the cablegram read upon the argument, that the "proceedings relating to the investigation as to the smuggling" above described in fact amount to "a suit for the recovery of money or property." The order must therefore be set aside.. Section 875 of the Revised Statutes does not help the petitioner; it only. provideR for the procedure when letters rogatory are ,addressed .and commissionerappointed; it does not extend the cases in which examination of witnesses will be ordered.
SOUTH COVINGtON &C. 8'1'. RY'. cO.
et al. v.
SAMEV. THE TRIBUNE.
(Ot"rcuit COU1't. B. ]).New York. August 31, 1888.)
COSTS-SECURITY FOR COSTS-TIME OF MoTION.
Tpe federal courts may require security for costs from non·resident plaintiffs at any time when no prejudice to plaintiffs' rights is shown to have resulted from defendant's delay in moving.
R. D. Be:nedict, for complainants. Sackett &BenneU, for Tribune Association. Fhmklin& ,Olifford and A. H. llartlett, for the Sun.
LACOMBE,' J. The state courts which refuse to require security for costa from a. non-resident plaintiff, where defendant has delayed moving untH after answer is served, also hold that impecunious non,residents may not sue in jormapauperi8. In this court such plaintiffs are allowed this priv· ilege; and an equitable application of the doctrine of Heckman v. Mackey, 32 Fed. Rep.' 574, would seem to warrant the court in requiring security from solvent non-resident plaintiffs at any time,-at least when no special prejudice to plaintiffs' rights is shown to have resulted from defendant's delay in moving. Defendant in each case may take an order requiring plaililtifl's to file security in the amount of $500.
On Motion for Security for Costs.
(Oircuit Court, 8. D. Ohio, W. D. September 11, 1888.)
Motion for New Trial and for modification of findings of fact. findings, see 34 Fed. Rep. 628. John a.. BenWn and Simrall Mack, for plaintiff. Hoadly, Johm.8on« Colston,and Reemlin &: Reemlin, for defendant.
JACKSON, J. The court has carefully reviewed the evidenc:e in ,this case, and fully considered the several grounds on which the motion for a new trial, and for a modification of the court's findings of fact, are made on behalf of defendant. Without reviewing these grounds in detail, the result of this re-examination is the conclusion that said motions should be denied. The court adheres to its former conclusion that the cause of action based upon the fraudulent representations made by defendant in respect to the 768 coupons was not barred by the statute of limitations. In the findings of fact heretofore filed the court found