George H. Parker , 1 Flip. 606 ( 1876 )

BROWN, District Judge.

The cross libel was filed at the last term of this court, and upon the eve of the trial of the original case, motion was made that the respondent in the cross libel give the security now asked for, but it was denied upon the ground that the party had no right to come in, as the case was called for trial, and ask for a stay of proceedings until a bond was filed to answer the claim set up in the cross libel.

1 then held the cross libellants should prosecute their claim with reasonable diligence, and had no right to put a stop to the proceedings after witnesses had been summoned and the libellant had appeared and was ready to commence the trial of the original case.

The case was, however, for some other reason, continued for the term, and the motion, is now renewed under somewhat different circumstances. Rule 53 provides that: “Whenever a cross libel is filed upon any counter claim arising out of the same cause of action for which the original libel was filed, the respondents in the cross libel shall give security in the usual amount and form to respond in damages as claimed in said cross libel.”

Although this may not be strictly a cross libel, inasmuch as the parties plaintiff are not parties of record in the original suit, and were not the owners of the tug at the time, the libel was filed; yet, as they are the par-' ties guilty of the negligence charged in the original libel, if negligence there be, and as they are the parties who must ultimately pay the claim, if the original libel be sustained, I regard this proceeding as a cross libel within the spirit and scope of the rule. It is certainly a counter claim arising out of the same cause of action for which the original libel was filed, and the reasons which dictated the adoption of this rule apply as forcibly to this case as if the cross libellants were now owners of the tug. I do not think til ese cross libellants have been guilty of such laches as should disentitle them to make this motion. The original libellant was not ready for trial at the time the case was called, though it was supposed he was at the time the motion was made, and the facts were such that a continuance for the term was granted. I see no harm that can now result to the original libellant from this motion, and it is, therefore, granted.