The opinion
BUTLER, District Judge.
The original libel, (of Funch, Edye & Co. v. “The Franklin Sugar-Refining Co.,”) was filed December 7, 1894, and the answer thereto and cross libel were filed December 26, 1894, whereupon Funch, Edye & Co. proceeded to take their testimony and have now completed their proofs.
On the 12th day of March, 1895, “the Franklin Sugar-Refining Company” applied for an order under rule 53 in admiralty, requiring Funch, Edye & Co., to give security for such damages as may be recovered against them on cross libel, and for a stay of proceedings on the original libel till security be entered.
I do not think this order should be allowed. It seems to medoubtful whether rule 53 contemplates a case where the original libel is in personam and where, consequently, no security is required of the respondent in the original cause; its terms do not seem applicable to such a case. It calls for “security in the usual amount and form,” etc.
Where the original libel is in personam there is no such “usual amount and form of security” to which security from the respondent in the cross libel may be made to conform, as the rule seems to call for.
The rule has not been understood, in this district; to apply to such cases, and has never been-so applied; nevertheless as it is not necessary to decide this question at present, I will not decide it.
Granting the rule to be applicable, 1 do not think the demand for security and stay of proceedings should be allowed under the circumstances shown. It was not asked for promptly, as if might and should have been, nor until the original libelants bad taken their testimony and incurred the expenses of doing so. To stay proceedings after this lapse of time and under these circumstances would seem to he unjust. Of course the cross libelant may have a citation as prayed for; the effect of taking it will be a matter for future consideration.