HOLLANDER t1. BAtZ.
Bill, Consul General, etC.!
(D£striet Court, S.D. New York. June 24, 1890.)
In a BUit for libel the defendant was granted leave to Berve an amended answer setting' up a justification of the alleged libel., which was not pleaded in the original answer, notwithstanding the lapse of more than seven months between the fil. ing of the original answer and the application to amend.
CONSUL-SAFE CONDU(l'l' REFUSED.
Wbere;ln a libel suit against a foreign conSUl. by a plaintiff who had been exfrom the country which. the consul by order of its governtIlflnt, the consul applied for a commission to examine witnesses in such foreign country, the government of which refllsedto allow plaintiff 'to return there, and attend such colllmb!:sion, it was heZd that, as.the government of 8uchforeign country stood in the virtqal relation of principal to the defendant, because the alleged libel was by him under orders from such government, it would not be ;just that such an ,important part of !>he trial of the cause as involved the examination of witnesses should be transferred to the jurisdiction of the government which refused: to llllow the plaintiff to be present, and that, except as to the proof of dl?Co . umellte the motion for a commission should be denied. .
At Law. On motion to amend answer and for commission. Hollander having in July, 1889, sued Baiz, as consul general of Guatemala in New York, for an alleged libel, the latter, in September, 1889, answered that he was a public minister, and as such, exempt from suit, and afterwards moved for a commission to take testimony in Guatemala. Th,e motion for a commission having been denied unless the government ofGuatemala shquld furnish plaintiff, whom it had expelled from Guatemala, with a saftl conduct, to enable him to be present at the 659,) which safe conduct the execution of the commission, (40 Fed. refused to give, and a motion to dismiss the complaint on the ground that defendant was a public minillter having been denied, (41 Fed. Rep. 733; approved, In re Baiz, 135 U. S. 403, 10 Sup. Ct. Rep. 854,) the defendant, in May, 1890, moved amend his answer by setting up the truth oithe alleged libelous publication, and renewed his motion for a commission to take testimony in Guatemala. BiUing8 & Cardozo and J08eph H. Ohoate, for motion. Robert D. Benedict, in opposition. BROWN, J. Notwithstanding the great laches in making the application for the proposed amendment of the answer setting up the truth of the alleged libelous matter, and the changes of view which have led to the application, I think it should be granted, together with leave to issue a commission for the examination of witnesses in Guatemala so far as is necessary for the proof of any paper, document, record, report, decree, or sentence on file in the archives of the United States consulate in Guatemala, or in any court, public department, or public office in Guatemala, and filed therein prior to the decree of May 14, 1889, and referred to in the said decree, or pertinent thereto, the originals whereof cannot be produced on the trial here, and of which copies shall not be con-Reported by Edward G. Benedict, Esq., of the New York bar.
sented to be admitted on the trial by the plaintiff's stipulation, subject to the same objeqtions as the originals, if produced; and also a photographic copy or copies of the paper purporting to be signed by Senor 'Herrera, but to be a counterfeited signature. Considering that the government or ministry of Guatemala stands in the virtual relation of principal to the defendant in ordering the publi, cation of the alleged libelin this country, and that it has already shown its jpterest and taken part, though not in any way improperly, in the defense of this suit, b,Y the action of its minister here;' and considering tpeexamination of the numerous witnesses, some 30 or upwards, proposed by the defendant to be examined in Guatemala by commission, would transfer within the jurisdiction of that government a considerableand important part of the trial of this action,and would render of witnesses .there by the plaintiff; and considering, further, that the go...·ernment of Guatemala has heretofore, notwithstanding the strenuous efforts of the defendant, and of its minister iIi this country, refused to give to the plaintiff a safe conduct to Guatemala for the sole purpose of attending the execution of a commission for the examination of witnesses there applied for by the defimdant, except on condition of an abandonment by the plaintiff of his claims against Guatemala, thereby refusing to the plaintiff the right of either facing his accusers in Guatemala, or of meeting the defendant on equal terms in the execution of any commission within that jurisdiction; and considering that that right, and the right of an oral cross-examination of witnesses, araM special importance on the trial of the issues in this action, except as to the proof ofdocumentaryevidence,-I think that the plaintiff's legal right to have the trial here, where the alleged libel was pUblished; arid where the alleged injury was inflicted, should not be abridged by an examination of witnesses in Guatemala under such advantages to .the plaintiff as that government insists upon inflicting, and under SUch circumstances as the affidavits disclose, except as above p.ermittedibutthat the witnesses should be produced in this court, in: order that ,the trial may ptoceed 'here upon equal terms, and with the plaintiff's common-law rights unimpaired; and the motion for a commission is to that extent denied.
INTERSTATE COMMERCE COMMISSION V.BALTIMORE eft O. R.
INTERSTATE COMMERCE COMMISSION V. BALTIMORE
& O. R., CO.
(Oircuit Court, S. D. Ohio,W. D. August 11, 1800.)
CA.RRIERS-INTERSTATE COMMERCE ACT-PA.RTY-RATE TICKEOfB.
'l'he issUance of "party-rate tickets," each good for a pat'ty of ten persons, at the rate of two cents per mile per capita, while single passengers are charged three cents per mile, is neither an unjust discrimination nor an undue or unreasonable preference or advantage, within the purview of the interstate commerce act, where such party-rate tickets are o.ffered to the pUblic generally, and where it appears tj:mt the rate charged single passengers is not unreasonable.
SAME-BURDEN OF PROOF.
Where a railroad company is charged with violating the interstate commerce act, by the issuance of "party-rate tickets" at less than the rates charged single passengers, the burden of proving that such lower charge constitutes an undue preference is upon the person making the charge.
SAME-CONSTRUCTION OF ENGLISH ACTS.
The interstate commerce act having adopted substantially some of the provisions of the English railway traffic acts of 1845 and 1854, the construction given to such provisions by the English courts must be received as Incorporated into the act. Following McDonaliL v. Hovey, 110 U. S. 619, 4 Sup. Ct. Rep. 142.
In Equity. A. G. Safford and John W. Herron, for complainant. John K. Cowen, Harmon, Colston, Goldsmith &: Hoadly, and Hugh L. Bond, Jr., for respondent. Before JACKSON and SAGE, JJ. JACKSON, J. This is an'application or proceeding under the provision of the interstate commerce act, by the interstate commerce commission, for the issuance by this court of a writ of injunction, or other proper process, mandatory or otherwise, to restrain the Baltimore & Ohio Railroad Company fromJurther continuing in its violation of certain orders of said commission, and for a decree requiring said railroad company to pay such sum of money, not exceeding the sum of $500 1 for every day alter a day to be named in the decree that said defendant shall fail to obey said injunction or other proper process. The orders of the commission, which this court is asked to enforce by its injunc. tion or mandatory process, were made upon a complaint filed before the interstate commerce commission by the Pittsburgh, Cincinnati & St. Louis Railway Company, against the Baltimore & Ohio Railroad Com" pany, which set forth and alleged that the petitioner was duly incorporated under the laws of Pennsylvania, West Virginia, and Ohio, and was engaged as a common carrier in operating a system of railroads, extending from Pittsburgh, Pa., to various towns and cities in said state; that the Baltimore & Ohio Railroad Company was duly incorporated under the laws of the state of Maryland, and was also a common carrier operating a system of railroads, a part of which extended from said city of Pittsburgh to many of the important towns and cities in the abovO'" named states, which. were reached by petitiuner'slines of road, and thus made it a competitor of petitioner in respect to business between said points; that upon its lines of road on which business competitive with