THE CORTES CO. (Three Cases.)
THANNHAUSER v. THE CORTES CO.
(Circuit Court,8. D. New YO'I'k.
Bettens eX Lilienthal, for plaintiffs. L. E. Chittenden, for defendants. BROWN, D. J. The plaintiffs, who are now residents of this state, have brought these suits to recover their alleged claims growing out of a sale of mining property to the defendants. No security for costs having been filed, the defendants, before answer, now move upon affidavits for an order requiring the plaintiffs to file security for costs in the sum of $1,500 to $2,000 in each case. The defendants' affidavits tend to show, that the transaction was fraudulent on the plaintiffs' part, but they do not show any item of taxable costs or disbursements yet incurred by them in either case, nor any steps yet taken which involved any disbursements whatever. The averments in this regard are entirely general, and in substance state only that large disbursements will be incurred in taking necessary testimony in Mexico, where the fees of commissioners, interpreters, and witnesses are alleged to be heavy. This is too general and too indefinite to warrant or to enable the court to fix any sum to be given as extraordinary security; nor do I think any order of that character should be made until after answer put in and the determination thereby of the precise issues to be tried, nor except upon a statement in detail of the items of extraordinary disbursements which either have been already incurred, or are immediately and necessarily impending, in proceedings already taken in the causes. I have examined the papers in the Emma Mine Cases, and the orders made thereon by Johnson, J., in 1875, referred to by the defendant's counsel, and find that where he granted an order for $2,000 in one of these cases the moving affidavits specified in detail large disbursements already incurred sufficient to call for the order made, while in another of the cases specifying such details, but not. in excess of the bond already filed, he refused to order furthel v.9,no.5-15
security. If, as defendants allege, the plaintiffs are insolvent, (though that is denied by them,) the court ought to be only the more cautious not to interpose any impediments in the way of their prosecuting any legal claim they may have except upon clear evidence of its necessity to protect the defendants' rights, and then to no grea:'terextent than manifest necessity requires. The practice in the state courts, where the right to large costs and extra allowances by way of costs may arise prospectively from the commencement of the ac'tion, cannot apply to actions in this court, where such costs and allowances are unknown, and where large actual disbursements are the only ground of requiring extraordinary security. The plaintiffs must give the ordinary security required by the rules, without prejudice to the right of the defendants hereafter to apply for further security upon proof of disbursements necessarily incurred in excess of the securitv filed.
THE CORTES Co. v. THANNHAUSER and another. CHITTENDEN and others v. THE SAME.
(Ot"rcut"t Oourt, S. D. New York.
OF 1875, § I-EQUITY RULE 13. A subprena or notice, issued on the filing of a bill in equity to enjoin an action at law, is not regarded as an original process or proceeding within the of section 1 of the act of :March 3, 1875, nor as within the terms of rule 13 in equity.
A bill brought by a defendant to enjoin the suit at law is only ancillary to such suit; but the court may, in its discretion, order personal service of the subprena on the plaintiff, if he can be found, in addition to substituted service on his attorney.
L. E. Chittenden, for plaintiffs. S. B. Clarke and J. W. Lilienthal, for defendants. BLATCHFORD, C. J. The defendants in these suits have brought two suits at law in this court against the Cortes Company and one suit at law in this court against Lucius E. Chittenden and others to recover sums of money alleged to be due. The above are suits in equity. The first of them is brought to restrain the prosecution of all three of the suits at law, and the second to restrain the prosecution of the suit at law against Chittenden and others. Properly in. terpreted, there is no prayer in either of the two bills for any relief except injunctions to stay the prosecution of the suits at law. The