I see no reason to doubt the soundness of the conclusion reached by the courts in the aboV!e Cases on this ,question, and it follows that the suit must be dismissed. As the court has no jurisdiction, the defendcosts. Suit dismissed, without costs. ants cannot
HENNING.,. WESTERN' UNION TEL.
lCircuit Oowrt, D. South. OaroUna.
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The rules of praotice of a United States oircuit court govern a oause broughtthere from a state 00.u.rt, under 25 St. at Large, 435, providing that ,"the cause IIhall then . slIJII,e . , prooeed in the . ' manner 88 if it had been originally commllnoed in lIaid.oirouit .
; Wllere a oause 111 removed from a state to·" United States circuit court, and the pIah1tftr amends hill complaint, he puts himself within a rule of practice of the oir. oUit·oourt; allowing a defendant, ,. in all oases, t' to demand security for costs before though the dem"ud oouldnllt h"ve been made in the state coun whBf8 the aotion was . ,
SAME-SEOURITY FOR COSTB.
At On motionfol' security fOI'costs. Buist &: Buist and JoM Wingate, for plaintiff. Ba,rker, Gilliland «Jilitiaimnns, for defendant.
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plaintifhhall have givenllOOur4ty for costs, if notice be giiven to the plaintiff's attorney that such security, will be required. The amount of s1:lchsecurity, . not tlfty dollal's; 'shall be fixed by the clerk. made , to:a )l1dge:ona rules-dar, orto the court in term. such furthersecurltymay be · ordered IrS may be deemed n006SSa1'Y:." '1 . j,'7'be'rule is nocase." b i,t Ilffectedhy the
'SmO:NTON, J. This'ca.se was originally brought in the state court. ·It wlis removed into,'. this court, plaintjff' being a resident of the state of 'Sotith',parolina, !lnd'the 'defendant' a After its removal the plaintitr obtained leave to' amend his complaint by insert·ing. th.e appointment apd name of his guardian(td litem,and. de'fendant had leave to answer the complaint when so'amended. Therelipondefendant,1 under Qursaventy-fifth rule, servedttotlcEdor security this motion, because he is tttesident of 'for cOsts. The plaintiff the state of South Carolina,and as such not liable to security for costs in the state court, and therefore not so liable in this court, into wblch the Cal3ecomes precisely In the same plightirr which it left. the state . ' court; . DUncan v.. 101. U. S. '812. . This It new ques,tion;' It must bG decidea '\lnder our own rule, which controls our prae'tice. 'Rule75 is in these words: ', ' "In no case shall the be compelled to plead or answer until the
.f.aqt.tqat before, the case ,came into court the plaintiff was underI\o obligation whatever'to give ;security for ,GOsts? The actoi congress regulating the removal of causes provides ihat, when removed', "the cause
shall then proceed in the same manner as if it had been .originally .com'" menced in said circuit comt." 25 St. at Large, 435. If the cause proceeds as if it began in this court, it is, of course, subject to the rules of the court governing causes begun therein, just as if the cause originally began here. Cla,'e v. Bank, 14 Blatchf. 445. Be1>ides this, the complaint has been amended in this court. The cause will be tried and decided upon the amended complaint, (Code S. C. 167;) that is to say, upon pleadings made up in this court, and governed by its rules only. The complaint has been amended in this court on the motion of the plaintiff, and to that complaint he requires an answer. The time and mode of putting in that answer depend upon our rules. One of says that an answer need not be put in, if security for costs be demanded, until the demand is complied with. Plaintiff has put himself within this rule. Let the plaintiff enter into security for costs before the clerk, under rule 75, before the defendant be required to plead to the amended complaint.
Consul General, etc. I
(Dl.BfJrictcoun. B. D. New Yor7c. December 4, 1889.)
UJIlPOSlTIONB-CoMMISSION TO FOREIl)N COUNTRy-;ExPULSJON-SAFB CONDUCT.
In'an action against the consul general of afbreign countryJ defendant moved for a commission to take te&timony in such cbuntry, It appearea that the government of that country refused toallow'1)!aintiff to enter its territory, and plaintiff furnished afIldavits tending to show the nature of the investigation and the questions to be raised, and that the commission was not likely to be properly executed in the plaintiff's absence, with due provision for his own defense. Held that the com· mission should issue only on condition that defendant obtain from hIs governtnent, and furnish to plaintiff, a safe conduct1 allowing him to enter the country and return, and be present on the execution ox the commission.
At Law. On motion lor commission to take testimony. R. D. Benedict, for plaintiff Billings & Cardozo, for defendant. The plaintiff, an American citizen, was expelled from the republic of Guatemala as a "pernicious foreigner," and the Guatemalan government directed the defendant, who was the Guatemalan consul general at New York, to publish the decree of expulsion in New York. Defendant sent the decree to the Associated Press; and this action was thereupon brought against him' for alleged libelous statements contained in said decree. Defendant thereafter moved for a commission to take testimony in Guatemala as to plaintiff's charactEir and reputation. Plaintiff furnished affidavits to show thatiin his absence such commission could not belairly conducted, nor hisoWfi witnesses procured and examined without his presence, and. opposed the allowance ofanycommisBion;unless he should be allowed to enter Guatemala, and be present at the ejtecution· of the commission.
JReported by Edward-G. Beuedict. EIIIl"of the New YOl'k bar.