I,A BOUflGOGNE.
47.5
tions presented with reference to the liability of the stevedores to contribute in case the ship should be condemned, and also as to libelant's right to recover in admiralty, although himself guilty of contributory negligence. The cosU! in this case have been very largely enhanced by the calls in warranty, and the libelant ought not be condemned to pay all the costs of the district conrt nor all the costs of this court. It is therefore ordered aud adjudged that the decree of the district court be reversed, and this cause l'emanded, with instructions to dismiss the libel, and that all the costs of this and the lower court be equally divided between the libelant and the claimant.
LA BOURGOGNE THE AILSA. ATLAS S. S. CO., LIm1ted, v. LA GENERALE TRANSAT· LA:NTIQUE. WHEELER v. ATLAS S. S. CO., Limited, et a1WESTERN ASSUR. CO. OF TORONTO et aI. v. SAME. (Circuit Court of Appeals, Second Circuit. April 7, 1898.) Nos. 21-23.
1.
COLLISION-FoG-ANCHORING IN CHANNEL.
Where a vessel in a dense fog anchors In New Yorlr Harbor outside of anchorage limits, and In the track of vessels seeking anchorage, and, while there, has means of knOWledge, by reason of the passing of other vessels, that sbe is in the channel, she Is In fault If another vessel, acting In a prudent manner, seeking anchorage In the customary and appropriate ground, runs Into her. Where a vessel outward bound from New York encounters a fog before reachIng the Narrows, and decides to anchor, but, Instead of anchoring above the Narrows, goes on through to find anchorage In Gravesend Bay, a natural, wide, and favorite anchorage ground (a course followed by other vessels about the same time during the same fog), and on leaving the Narrows to go to anchorage in the bay, while acting with the usual precautions, runs into another vessel anchored In the channel, she is not at fault.
2. SAME.
These three appeals are from the decrees of the district court for the Southern district of New York, which dismissed three libels against the steamship Bourgogne, for damages arising from a collision. The first libel was by the owner of the injured vessel; the second was by one of her passengers; and the third was by the insurers and owners of her cargo. The general facts iIi regard to the collision are accurately stated by Judge Brown, as follows (76 Fed. 868): The above libels were filed to recover damages for Injuries arising from a collision between the steamships Bourgogne and Ailsa at a little after 2 o'clock In the afternoon of February 29, 1896, during a dense fog for about half a mile below the Narrows, In New York Harbor. Both steamers were outward bound. The Ailsa, 1,330 tons register, 297 feet long, had left her pier in North river about noon, and, finding thick 'fog at the Narrows, came to anchor. The Bourgogne. a much larger steamer, 475 feet long, left her pier in the North river at 1:13 p. m. The tide was Stfl!>ng ebb. She was backed out of the pier, and turned wit,h aid of tugs, and on her course downriver at 1:37.
476
86 FEDERAL REPORTER.
OR starting, the weather was somewhat misty or rainy, 'but without fog, untl{ near Robbins' Reef, where fog was seen mostly on the' west shore, the easterly shore being much clearer. Off' only the masts of vessels could be seen, and the high ground above. Ft. Lafayette was shrouded in fog, but the cliff' above Ft Hamllton and the houses around It were clearly visible. Before reaching Ft. Lafayette, the pilot had determined to anchor In 'Gravesend Bay, just below the fort. From the time occupied, It Is evident tlJat the Bourgogne must have proceeded nearly to Ft. Lafayette at almost her full speed, or about 16 knots. On encountering the thicker fog there, or a little above, she slowed, and soon stopped her engines. She was then nearly In mid-channel, and soon, after starboarded her wheel, In order to go towards Gravesend Bay for anchorage. Soon afterwards the mast!1 of the Ailsa were seen nearly directly ahead, but a'little on the port bow, and, only a short dIstance away, probably not over one or two lengths away. 'l'he Bourgogne's wheel was Immediately put to port, and her engines reversed. Her stem, however, struck the port bow of the Ailsa at an angle, as the evidence Indicates, of about two points; and made a hole In the Allsa about 6 feet Inboard, and about 16 feet In length, fore and aft. The Bourgogne almost immediately backed away under the influence of her reverse engines, and, In the fog and ebb tide, was carried down about half a mile below, where she anchored. The wound in the Ailsa extended below the water line. ,Her officers, almost Immediately perceiving that she was making water rapidly, have anchor, and started ahead, under the full speed of bel' engines, for the purpose of beaching the ship on the land In a northeasterly direction. Soon'after she got under way, tbe steamer Advance coming down upon a course S. by E. made It necessary for the Ailsa to stop and back bel' engines to allow the Advance to pa.ssahead of her, after which the Ailsa continued on, passing astern of the AdV'ance, but soon sinking, bow first. The point where she sank was afterwards located as 1,800 feet S. by E., lh E., from the easterly side of Ft. Lafayette. The witnesses on the part of each steamer testify that their own steamer gave the statutory signals, but neither heard any signals of the other until seen very near. On the part of the Ailsa It Is claimed that the collision arose by the fault of the Bourgogne (1) In not anchoring before passing Ft. Lafayette, ,and In unnecessarily going below the fort In thick fog; (2) for excessive speed In fog; (3)' for not having a proper lookout, and not giving proper signals. For the Bourgogne it is claimed (1) that the Ailsa is alone to blame for having anchored unnecessarily In the chapnel way where vessels seeking be expected to pass, instead of going further to the eastward within the anchorage limlts"of Gravesend Bay, as required by the reguilltions of the secretary of the treasury; (2) for not giving the statutory signals; (3) for notllilttlpg out her chain when the approach ,of the Bourgogne was seen.
Everett J;l. Wheeler, for S. CQ. Wilhelmns Mynderse, for Western AssnI'. Go. Lamb & Johnson, for Charles B. Wheeler. Robert D. Benedict and Edw. K. Jones; for La Bourgogne. Judges. ,Before WALLACE, LACOMBE, SHIPMAN, Circuit Judge (after stating the facts as above). The in regard to the Bourgog:ne'sexcessivel;fpeed, and her not havIng a proper lookout, and her not giving proper signals, and in regard tO,the Ailsa's llot be laid out of the Gase. The evidep.ce is that each vessel did her duty, and complied with the statutes in these particulars. The two important questions in the Clfse are whether the, Ailsa was anchored ill the channel way to the .was, under the cir· westward of the prescribed anchorage limits, cumstances of the case, in an' improper place, and whether the Bourgogne was guilty of negligence in not having sooner understood the importance of coming to an'chor, and in not anchoring above Ft. Lafay-
LA BOURGOGNE.
477
ette. Judge Brown has given with great care the testimony in regard to the navigation of the Ailsa, and the deductions from it which assisted him to a result which freed the Bourgogne from liability. As we have reached the same result in regard to the two vital questions, we do not deem it necessary to review with minuteness the items of the testimony in that part of the case, for there are other facts which seem to us also important upon the question of her location after she was anchored, which can be stated briefly. The libel, after stating the facts in regard to the weather, and that it was imprudent for the vessel to continue any further, averred that she "thereupon left the mid-channel, and was anchored as close to the Ft. Hamilton shore as was deemed prudent in order to be out of the way of vessels proceeding through the Narrows," and that the collision was caused solely by the negligence and want of proper care on the part of the Bourgogne. Inasmuch as the moving steamship had collided with a vessel at anchor, and therefore powerless to help herself, it was incumbent upon the ship in motion to take the burden of freeing herself from this charge of negligence, for the presumptions were prima facie against her; and, if the vessel was anchored in an improper place, the colliding vessel should show that she could not be avoided by the use of due care. The Annot Lyle, 11 Prob. Div. 114; The Bothnia, Lush. 52; The Batavier, 2 W. Rob. 407; The Lochlibo, 3 W. Rob. 310. The claimant denied in its answer that the Ailsa was anchored as close to the Ft. Hamilton shore as was deemed prudent, and denied that the collision was caused solely by the fault of the Bourgogne, but charged that it was caused by several faults of the Ailsa, among which was anchorage in an improper and unsafe place. The Bourgogne, having admitted that she, a steam vessel in motion, had collided with a vessel at anchor, must clearly show a sufficient excuse for such con· duct; and one part of her excuse was the alleged fact that the place of anchorage was so much westward of the anchorage line, which had been designated by the secretary of the treasury, as to be in the way of vessels who were also trying to anchor. When the Bourgogne had clearly shown this, and the misconduct of the Ailsa was "funy made out by the proof" (Strout v. Foster, 1 How. 89), the Bonrgogne had partially freed herself from the strong presumptions of faulty conduct which would otherwise have rested upon her. The duty, however, remained upon her of showing that she could not see and did not hear that the Ailsa was in front of her, because, to use Dr. Lushington's illustration, it does not follow that, because a motionless carriage is on the wrong side of the road, it can be injured with impunity by the driver of a moving carriage, who sees and can avoid the obstruction. The Batavier, supra; The Clarita, 23 Wall. 1. In this case, as will hereafter be more particularly noticed, although the Ailsa left New York pier about an hour before the Bourgogne, the two vessels were compelled to seek an anchorage under about the same circumstances. The Ailsa knew the importance of coming to anchor, and says that she left the mid-channel, and that she attempted to be out of the way of vessels proceeding through the Narrows. She did anchor about half a mile below Ft. Lafayette. The Bourgogne says that she left the mid-channel under the same necessity for the purpoRe
478
86
FEDERAL ?TiJrORTER.
of anchoring in ·the bay below Ft. Lafayette. Each knew.. the import. ance of .keepingout of the. way of moving vessels, and. each knew that, for the purpose of safety in the crowded harbor of New York, anchorage grounds had been provided, but that in the darkness it was difficult to know with certainty where they were, and therefore eacb knew the necessity of caution. In this position of affairs, it is of some significance that no one on boardtb,e Ailsa, abd no one in her behalf, testified that she was on anchorage ground. Her pilot, who presumably was familiar with the alll;horage lines, says: "We were on the eastern side of the channel. I couldn't exactly state whether we were on the iUside of the line or on the line, because there was a dense fog, put we were somewhere on the line or near the line."
There was an especial obligation' upon him to exercise caution, and to try to have SOIlie' certaitityof belief upon this subject, because he was seeking' 'for anchorage by reason of a fog on the afternoon ot Saturday, when outgoing ocean steamers are always numerous, when the harbor was full of vessels <>fall kinds; and when he was bearing abundant signals of warning. .After the calamity, .and after daylight and litigation bad come, he apparently obtained 'no additional opinion on the subject. A circtimstan<;e which is conceded, and which is significant, m.the fact that after the collision, and after the Ailsa had left her anchorage to seek the eastern shore, she was obliged to eheck her speed to permit the outward-bound steamship Advance, which was also going into Gravesend Bay, and was eastward of the Ailsa, to cross her bow. The district judge says: . ''The testimony of her master Is the Advance was then upon a course south by east, which she had after passing within 300 feet of Ft. Lafayette. If this Is correct; .the Ailsa must have anchored to the westward of that south by east course, and hence considerably to the.westward of the anchorage limits."
Another circumstance of the. same character is that it appears by the Ailsa's testimony that, after she anchored, two steamships, both going down on the eastward side of her, passed very near bel'. A third vessel, the Bourgogne, ran into her. This shows that she was in the pathway of similarly situated vessels, who were also seeking anchorage, and that she had stopped in their way,. and not outside of it. Another steamer going up c;m the westward side of her passed near her, from which it would seem .that, .although she ·had anchored, she was in the channel way of an upward-bound vessel, which was not seeking anchorage ground in that vicinity. After the collision, the Ailsa found that sb,e was badlywonn.ded, and that her hope of partial .safety lay in.an endeavor to reach the eastward shore promptly. The attempt was a hurried one. It :rp.anifestly made under considerable for lives were In,?{tuger. It . was impeded by the necessity of raising the anchor, an<l.of reversing Advance appeared, and, qy the sluggish of a ship. rapidly filling with water. The timec;luring. which she was making headway cannot be ascertained with satisfactory but it is certain that the place where she sank was about 200 feet eastward of and within the anchorage line. Allowing that ()nly minutes in forward motion, and making proPer allowances fpJ.' of rapid move-
f,A BOUIWbGNE. c"
47\;1
ment in her disabled condition, she must have moved far more than that short distance from her anchorage ground. The Bourgogne's testimony, if approximately accurate, places the Ailsa quite to the westward of the line, and in the traveled part of the channel. The Bourgogne's pilot says that he was in mid-channel when he passed Ft. Lafayette, which would be 2,000 feet west of the fort; that he maintained a course south 'by east until he starboarded to go to anchor; that, shortly after, the Ailsa was seen, and a head and head collision immediately followed. The uncertain part of this account consists in the difficulty of her pilot knowing whereabouts in the channel he was when he starboarded, for the estimates. of interestedwitnesses in regard to their position in the channel in a concededly dense fog cannot be relied upon. The testimony of the superintendent of the Ailsa in regarp to the amount of water at her place of anchorage, as shown by the amount of chain which he esti· mates to have been in the water, is an opinion of importance in favor of her location; .but all the well-ascertained circumstances point with great certainty to the conclusion that she was not only outside, but was much outside, of anchorage limits, and in the track of vessels who, like herself, were seeking anchorage. If she had been only technically in the channel, a different question would hate arisen, but she was substantially within it. This conclusion fixes upon her the charge of inexcusably faulty conduct, because there was no difficulty and no serious danger in her going at least a quarter of a mile further eastward. The next question is in regard to the negligence of the In a dense fog it is the duty of a steam vessel to anchor, where anchorage is permissible, as soon as circumstances will permit, but she ought not to anchor in a thoroughfare in the very track of naVigation. The Otter, L. R. 4 Adm. & Ecc. 203; The Clarita; 23 Wall. 1. The libelants confidently insist that the coming peril was perceived or ought to have been known by the pilot of the Bourgogne, and that he ought to have anchored above the Narrows, off Bay Ridge or Stapleton. It is true that he knew, when he turned the bell buoy at the end of the Mud Flats, that the vessels could not go to sea that afternoon, and that she must come to anchor; but the question for him to decide was whether to anchor forthwith, before going through the Narrows, or to go on to Gravesend Bay. At this time the fog was thick on the Staten Island side, and lighter on the Long Island side, and there was a reasonable prospect of a continuance of this state of the atmosphere until Ft. Lafayette was reached; and, immediately beyond, Gravesend Bay was a natural, wide, and favorite anchorage ground, which outgoing steamers were wont to seek in case of inability to go to sea. Although the Ailsa preceded the Bourgogne by a little more than an hour, the conditions which each vessel met in regard to fog were about the same. Capt. Morris, of the Ailsa, first perceived the fog when his vessel was at the Narrows, and, almost immediately after passing Ft. Lafayette, ran into thick fog. Cote, hel' second officer, says that she ran into the fog at the beginning of the Narrows; and as she got through the Narrows, and passed Ft. Lafayette, it got very thick. Capt. Poirot, of the Bourgogne, says that, after his vessel entered
480
FBlDBlRAL RBIPORTER.
the thick fog opposite Quarantine, he wanted to anchor; "but the pilot said they were too much i;nthe Narrows, and must go south of Ft. Lafayette; and, when they coming to anchor, they saw Giquel, her second captain, says that he saw very well the at Robbins Light, but a little afterwards the weather began to get thick, and a Uttlebefore Quarantine the right-band side commenced to get thicker, and; a little before arriving at Ft. Lafayette, the weather got completely thick, and they could see nothing. In this state of facts, a decision to go on to Gravesend Bay, or to stop, must be made before entering the Narrows, for anchoi'age in the Narrows was impracticable. The thickness of the fog before or as the vessel reached the Narrows was not such as to make it imprudent to go forward until the bay was Her act was not in violation of a statutQry rule. Therefore, its negligence or-itsaccord with prudence must be judged of by the aid of the considerations which naturallydesignate conduct in this. respect; and a natural inquiry is: How domen of ordinary prudence, conversant with the necessities of the situation, and with the responsibilities which attach to a decision, act under like circumstances? The Galileo was. apparently the only sea-going steamer which came to anchor above the Narrows. She anchOred at Liberty Island, and afterwards at Stapleton. The pilot of the Ailsa went through the Narrows, attempted to take the Gravea mile beyond send anchorage, and anchored one-quarter or Ft. Lafayette. The pilots of at least four other came to the same decision, and acted accordingly. Upon the assumption that they were men of average prudence, their concurrent action. under like circumstance.s is very significant. The Ailsa's bell was not heard by the until she was when all the usual precautions against collision were taken; .and ll:o, fault can be charged against the moving vessel if she was not guUty of negligence in coming through the Narrows. The decrees of the district court are affirmed., with costs.
LARE V. HARPER &: BROS.
481
LARE et aI. v. HARPER & BROS. (Circuit Court of Appeals, Third Circuit. No. 16. UNFAIR COMPETITION-PRELIMINARY INJUNCTION.
March 28, 1898.)
The complainant had published a book entitled "Farthest North. Nansen," composed mainly by Dr. Nansen. Afterwards the defendants commenced the publication of a book under the title "The Fram Expedition. Nansen in the Frozen World." The defendants' book contained a number of portraits and illustrations similar to those made use of by the complainant, and part of substantially the same literary matter. It contained accounts of sundry arctic expeditions prior to Dr. Nansen's polar voyage, to which reference is made in complainant's book. But tile defendants' book differed from the complainant's in respect to style, price, number of volumes, and color, to such an extent that an ordinary customer possessing common intelligence would not mistake the one for the other. Held, that the complainant was not entitled to a prellminary injunction on the ground of unfair competition in trade.
from the Circuit Court of the United States for the Eastern District of Pennsylvania. Hector T. Fenton, for appellants. A. T. Gurlitz, for appellee. Before ACHESON, Circuit Judge, and KIRKPATRICK and BRADFORD, District Judges. BRADFORD, District Judge. This is an appeal from an interlocutory decree awarding a preliminary injunction restraining the de· fendants below, appellants, "from directly or indirectly advertising, offering to sell, selling or otherwise disposing of any books, either in the English language or in the Norwegian language, which are named, advertised, or offered for sale in such manner as to indicate that they are the books printed or published by the complainant; and also from printing upon or using in connection with any books the words 'The Fram Expedition. Nansen in the Frozen World;' or any similar title or combination of words, or any imitation of the name of the complain. ant's books; and from in these ways and in any other way, form or manner Whatever, infringing upon or interfering with the rights and business of the complainant in the premises." The complainant's books referred to consist of an English translation of an account of the recent Norwegian polar expedition conducted by Dr. Fridtjof Nansen, composed by him mainly, if not wholly, in the Norwegian language, and an appendix containing an English translation of the report of steamer Fram, Captain Otto Sverdrup relating to the drifting of composed by the latter in the Norwegian and translated into the English language. The complainant claims that it duly obtained copy· right in and to the above work for the United States February 8, 1897, and that it was put on the market in March of the same year, all of the requirements of the law relating to copyright having been complied with. The cause of controversy between the parties was the publication, in both the Norwegian and English languages, and sale by A. J. Holman & Co., of which firm the appellants are survivors, during and after June, 1897, of a certain book, the composition of 86F.-31
482'
,86 FEDERAL:REPOitTElR/ :
which need not be here stated with any particularity of detail. It is sufficient to say that it contains part of the same, or of substautially the same,l1itel'ary matter found in the complainaut's book, also anum· bel' of portraits aud pictorial illustrations similar to those made use of by the complainant in its book, and accounts of sundry arctic expeditions, prior to Dr. Nansen's polar voyage, to which reference is also made in the complainant's book. Although the complainaut in its bill d.eals largely with the question of infringement by the defendants of rights claimed to bave been secured to the former by copyright, we, like the learned judge below, are not ,satisfied that the were not at liberty to make use of the text, portraits and pict()rial.ilIustrations contained in their book by way of publication aud sale; and, therefore, for the purpose of disposing of tMs appeal it must be Wlsuined that the defendants possessed that right. The injunction was based upon supposed unfair competition in trade by the defendauts in putting- their 'book on the market. It is a wholesome doctrintdhat equity will restrain unfair competition in trade; but it should be applied with caution, lest, through possible misapplication, healthfulaud honorable competition be defeated. Particularly is this true with respect to literary, historical and scientific works. The complainant was not entitled to a monopoly in the subject of arctic explorations; nor had it au exclusive right to publish aud sell books relating to Nangen's polar expedition. That subjectwas9pen to the world. Nor had the complainaut an exclusive to the use the words "The Fram right, as against the Expedition. Napsen in the Frozen World," orof any of them. There qan be little doubt that e:xploits served, to kindle popular in· terest in arctic explorations. ' In fact the record discloses that they were the proximate cause of tb,e publication by the d,efendauts of their book. But this circumstauce does not in the least militate against good faith or fair dealing on their part. " It appears that months before Nausen began to write an account of the expedition the defendants had determined to publish a book on that and kindred subjects. Nor does or title of the defendants' book discloSeauy intent to indulge in unfair competition with the cow-plainant., . Certainly the differeij.ce between, the two books is obvious to any ordinary . The complainant's book is in two vol:umes customer of such' 587. arid 714 pages, and il:1 bound in brown containing cloth. The defendants' book is in one volume, containing, in the English edition, 531 pages, and, in the Norwegiau edition 524 pages, and is bound in bille cloth in both editions. The complainant's book contains on the outside cover a circular figure inclosing the words, ''Farthest North. Nansen,'" and on the ,inside title page the words and figures: "Farthest North. Being the Record of a Voyage of Explora: tion of the Ship Fram 1893-96. and of. a Fifteen Months' Sleigh Journey by Dr. Nausen and Lieut;Johansen. By Dr. Fridtjof Nangen; with an appendix by Otto Sverdrup, Captain of the Fram. About 120 frill-page and Numerous Text Illustrations. 16 colored Plates in ,Fac Simile from Dr. Nansen's Own Stretches, etched Portrait, Photogravures, and 4 Maps. In TwO Volumes, Vol. 1. New York. Harper & Brothers Publishers. 1897." The second volume is like
of
LARE
v.
HARPER & BROS.
48&
the first both in the outside cover and title and inside title page, except that it is marked "Vol. 2" instead of "Vol. 1." TJ..J.e defendants' book contains on the outside cover the picture of a ship in the ice with a flag on her foremast bearing the word "Fram," with a polar bear in the foreground, and the words, in the English edition, "The Fram Expedition. Nansen in the Frozen World. Including earlier Arctic explorations." On the inside title page of the English edition are the words and figures, "The Fram Expedition. Nansen in the Frozen World. Preceded by a Biography of the .Great Explorer and copious Extracts from Nansen's 'First Crossing of Greenland.' Also an account by Eivind Astrup, of Life Among People near the Pole, and his Journey Across Northern Greenland with Lieut. R. E. Peary, U. 8. N. Arranged and Edited by S. L. Berens, Cando Phil. Followed by a Brief History of the Principal Earlier Arctic Explorations, from the Ninth Century to the Peary Expedition, including those of Cabot, Frobisher, Bering, Sir John Franklin, Kane, Hayes, Hall, Nordenskjold, Nares, Schwatka, DeLong, Greely and others. By John E. Read, Assistant Editor of the 'Columbian Cyclopedia.' Profusely illustrated. Philadelphia, Pa. A. J. Holman & Co. Publishers. 1897." The Norwegian edition of the defendants' book contains on its cover and inside title page words in that language corresponding with the words on the cover and inside title page of the English edition. The complainant's book in two volumes sells at $10, and that of the defEmdants at $2. It is evident that the two works are calculated respectively to meet the demands of different classes of purchasers. There is nothing deceptive in the covel', outside title or title page of the defendants' book. Those titles, taken in conjunction, are fairly descriptive of the subject matter of the volume. They radically differ from the outside title and title page of the complainant's book. Comparing the two works, we are un· able to perceive that any ordinary customer of such books possessing common intelligence should, in the absence of actual fraud practiced upon him, mistake the one for the other, without gross carelessness on his part. The answer expressly denies fraud and unfair competition. It is a rule, subject to few exceptions, that a preliminary injunction should not be awarded on ex parte affidavits, unless in a clear case. This rule has full application in a case like the present, where, though the bill should ultimately be dismissed, great damage would result from such an injunction to the standing and bu <;iness of a book publishing house. If there be any substantial doubt as to the right to a preliminary injunction in such a case, it should be refused. In the present state of the proofs the court below was not justified in holding that the defendants have been guilty of unfair competition in trade. Consequently the decree for a preliminary injunction must be reversed and the injunction dissolved. The decree of the circuit court is reversed.
484
S8 FEDERAL REPORTER,
THRUSTON v. BIG STONE GAP IMP. CO. (MINIDRAI. DEVELOp· MENT CO., Petitioner). ' (Circuit Court, W. D. Virginia. No. 407. 1. 2. EQUITY PLEADING-CROSS Bn,L-NATURE.
April 2, 1898.)
A cross bill is in the nature of a defense, may be filed only by a party to the suit. and may not introduce new matter or new parties. Where, in a suit by a trustee to foreclose a trust deed, a bondholder under such trust deed, not a party to the suit, files a so-called "petition and cross bill," setting up misconduct of the trustee in his management of the trust. and asking relief against the trustee for the sole benefit of the petitioner, without controverting any issue of the original bill or resisting the prayer for foreclosure, held: (a) That such petition cannot be entertained as a cross blll, being filed by a stranger to the cause; (b) that it cannot be entertained as a petition for leave to be. made a party and file a cross blll, since It states a cause of action which, although growing out of the same transactions, is virtually independent, and a cross bill embodying such matter could not be entertained, even if the intervening petition were granted.
SAME-CROSS BILL AND INTERVENING PETITION-WHEN ENTERTAINED.
St. John Boyle, for plaintiff. R. A. Ayers, for defendant.
H. S. K.· Morrison, for petitioner.
SIMONTON, Circuit Judge. This bill is filed by R. C. Ballard Thruston, a citizen and resident of the state of Kentucky, the trustee of a mortgage given by the Big Stone Gap Improvement Company, a corporation of the state of Virginia, to secure bonds in the aggregate $1,000,000. The deed under which he holds authorizes the trustee to sell the mortgaged premises on default, but he prefers to come into this court. The prayer of the bill is for foreclosure and sale. To this bilUhe mortgagor is the sole defendant, and its answer on file admits the execution of and the default upon the mortgage. The cause being thus at issue, a petition is filed by the Mineral Development CODlpany, a corporation, of the state of Virginia, holder of bonds secured by the mortgage to the amount of $40,000, ,with unpaid coupons to the amount of $16,000. This petition sets out action on the part of the trustee of which it complains, maladministration of the. trust, loss of trust funds, devastavit in the management of them, the declaration of dividends, and the payment of them in a mode contravening the terms of the trust deed, the destruction by his acts of equality among the bondholders, a failure on his part to comply with the laws of Virginia, requiring him, as trustee, to settle his accounts with the commissioner of accounts of Wise county, where the land mortgaged is situate, and, above all, the right to an account from him as trustee. The prayer of the petition is that the petitioner be made a party to this suit; that he have leave to file a cross bill; and that this petition be taken as such cross bill. In fact, it has been filed as such cross bill, and process has been issued and served thereon. The trustee has been served under the act of 1875, as a resident and citizen of another district than this.