BUGUNIN V. THATOHER:
105
oaths, as required by statute. They are subjeot to all penalties de. nounced against fraudulent claims on the United States. Their pensztion is derived from small allowances for the several acts they officially perform. They have no salary or general allowance to rec· ompense them for services of a general character. And, in view of the law and the facts of this particular case, we do not feel justified in ordering the commissioner, against his protest, to show the docket he has kept under the direction of the court, and for which he is denied pay. If he were properly paid for it, then the court would hold that its production, as often as called for by proper authority, would his charges for keeping it were be necessary, as the evidence correct. And if it be made hereafter to appear that for the labor and service imposed on them by any order of the court the commissioners are not allowed 'such compensation as they are reitBonablyentitled to, the court, On their request, would feel oonstrained, by mod· ification of its order,tb afford them relief. Motion denied.
HUGUNIN
v.
THATCHER.
({Jircuit Court, N. D. New York. 1883.) PRACTICE-NoN-REBIDENTS-SECURITY FOR COSTs-TIME WITHIN WHICH DEMAND MUST BE MADE.
The time within which a defendant shall make his demand for security for costs, from a non-resident plaintiff, is not confined to the time before issue is joined, but the defendant may require the security to be filed at any stage of the litigati0D.z.provided he is not guilty of laches or bad faith. l3ections 3268 and 3278 of Y. Gode of Procedure adopted by this court.
In Equity. R. H. Duell, for defendant. A. H. Walker, for complainant. COXE, J. The defendant asks for an order compelling the complainant, who is a. non-resident, to file security for costs. The application is opposed solely on the ground that it is made too late j the demand for security being served five days after the answl;jr was tiled. The provisions of the Revised Statutes of New York relating to se· curity for costs, (now sections 3268-3278 of the Code of Civil Procedure,) ar.e adopted by this court. Rule 4, Cir. Ct.; Rule 64, Diat. Ct.; Conk!. Treat. (5th Ed.) 468; Lyman Ventilating, ett:., Co. v. Southard, 12 Blatchf. 405. It will be seen, upon an examination of the sections referred to, that they are entirely silent as to the time when the defendant may require the security to be filed. There. is nothing to warrant the construction that he must make the demand before issue joined. He may-the plaintiff being a non-resident-make it at a.ny stage of the
106
rEDERAL REPORTER.
litigation, provided he is not guilty of laches or bad faith. The courts of New Yo,rk have so decided, and upon such a question their decision should be followed by this court. Burgess v. Gregory, 1 Edw. Ch. 449; v. Rhodes, 4: Sa.ndf. Ch. 434 ; Northrop v. Wright; 1,H()w.lr. 146; Robinson v. 1 Denio, 628; 2 Wait, eh. Pro (2d Rev. Ed.) 102. Pro 57:a; 1 There Sbpuld be an order requiring the complainant, within 20 days, to file security in the sum of $250, and providing fora stay of proceedings in the usual form.
HUGHES
NORTHERN ,
Co. and ,
others.
(Circuit Oou-rt, D. Oreoon. ,.october 29, 1883.) 1. VERIFICATION OF BILL IN EQUITY. ,
A bill in equity, even for an injunction, need not be verified unless it is in· tended to, be used as evidenee on an application for a provisional injunction. A suit arises under a law of the United States when the controversy involved therein turns upon the elliilltence, oroPeratiou of such a law, and therefore a suit by ariparian owner to enjoin the construction of a bridge contiguous and injurious to h\s prqperty, upon the ground that the defendant is not authorized to build the same by a certain act of congress, as it pretends and claims, under said act, and is wit.hin the jurisdiction of the proper circuit -court, 3. IN WHAT OOURTS NORTHERN PACIFIO MAY SUE OR BE SUED-CITIZENIlHIP Oll'.-
2.
JumSDIcTION UNDER A LAW OF THE UNITED STATES.
8embte, that the Northern Pacific Railway Company, being created by an act of congress, may sue or be sued in the pruper circuit court of the United Btateg in all cases i and; qurere, of what state, if any, is it a citizen, for the purpose of jurisdiction in such courts Y
4.
ACT INCORPORATING TIlE NORTIlERN PACIFIC-OONS'l'RUCTION OF.
The act of July 2, 1864, (13 St. 365,) incorporating the Northern Pacific Railway Company, and the acts amendatory therepf, are a grant by the public to a private corporation, and mnst therefore be construed moot sfrictly against the latter, so that no authority, right, or privilege cunbe b,eldto pass thereby unless the same is therein plainly expresied or clearly implied. . . TIlE LINE
5. NOR'fHERN'PACIFIC AU'rHORIZED TO BRIDGE A NAVIGABLE WATER OF ITS ROAD.
The Northern Pacific Railway Company was author-iiled by said acts" to lay out, lOCate,. construct, fllrnish, maintain, and enjoy a continuous railway" from Lake Superior to Portland, Oregon, '-'with all the powers, privileges, and immunitie.s necessary to carr3' into effect the purpose" of-said acts; the same" to be constructed in a sn13stantial,and workmanlike manner, with all the necessary draws, '' ....... bridges,etc" ' ... '" equal in all respects to railways of the first class i" and it is necessary to cross the Wltllamet river with such road in order to reach Portland from the eastward. . Held, that the right of the Northern Pacific Railway Company to build and maintain a draw-bridge across said river, or other llavigable '\Vater on the line of its road to Portland, without causing any unnecessary inju"yorobstruction to the usef-ulness thereof, is cleaxly implied in said acts i but th:\,t.congress not haVing pl'.escribed the exact location ?r part\Cular !lharac.ter of said bridge, the right of the corporatio.n \0 construct It IS suhject tp the Judgment of the proper court as to 'Whether It ·is being constructed Witilout unnecessary injury to the navigabilitv of such water, the or likely to be.
