of the Evans, and their demand that the Noyo should proceed without delay, and by the direct route, to St. Michaels. This protest and demand undoubtedly had its effect upon the master of the Noyo, and accounts for his conduct in proceeding to sea without the Evans, instead of taking the inside passage, by way of Cross Sound and the coast line, with the Evans in tow. The appellant contends, however, that the master of the Evans unqualifiedly refused to allow the Evans to be towed further under the contract, after arriving at anchor in American Bay, and by so doing broke the contract, and released the towing vessel therefrom. The testimony shows that the master of the Evans expressed a willingness to proceed under tow if taken by the inside route, but that, rather than be towed further in the reckless manner pursued up to that time, he would go on alone under his own steam. The circumstances do not warrant the conclusion that this statement was made for the purpose of breaking the contract, merely. It was of the greatest importance that the Evans should arrive at St. Michaels promptly, for the fulfillment of its engagements there, and that it might make a trip up the Yukon that season. Much delay meant the loss of all business for it that season. It must be considered, then, that the master of the Evans was sincere in his belief that to go on over the route insisted upon by the master of the Noyo meant the destruction of his vessel, and perhaps loss of life, and that his refusal to go on under tow was merely a refusal to go over that route. The appellant also contends that, in the absence of special agreement, the choice of route was a matter resting in the sound judgment of the master of the towing vessel, and that the Noyo was only required to convey the tow to destination by the most direct customary route. Conceding this, and granting the correctness of the decisions cited in support thereof, it does not appear in this case that the master of the steamer Noyo exercised sound judgment in the choice of route. It is not borne out by the evidence with regard to the attempts that were made to go out into the open sea with the two tows, nor the result of the final venture with but the one vessel in tow; it appearing that the remaining vessel, the Alfred J. Beach, towed by the Noyo, was lost on the second day after proceeding to sea without the Evans, not being able to withstand the strain of the towing against a head sea. The majority of vessels with tows proceeded by the inside route, where shelter was easily afforded during the greater part of the voyage, while wreckage and disaster seem to have followed those that attempted the open sea route. "Reasonable care and skill" depends for its interpretation upon the peculiar circumstances of the case in question. In the towing of a boat built only for the shallow water of an inland stream, greater care must necessarily be used when venturing upon an ocean voyage than with a vessel fitted for the deep water, not only in the choice of route, to select the one affording the smoothest water and convenient shelter in stormy weather, but in the handling of the tow. This quality of care and skill does not appear to have been given by the steamer Noyo, and its absence. constitutes a breach of the contract in question, fixing liability therefor upon the owners of such vessel. Exception is taken to the apportionment of damages by the lower court, and the contention is urged that, even if the Noyo shall be found guilty of negligence, the Evans must be found to have been at fault as well, in which event, in accordance with admiralty practice, the damages should be equally apportioned. The Evans has not been found to have been at fault, and this rule is therefore not applicable. The court below allowed to the libelant— The advance payment made on account of the towing contract, which service was unperformed....... $2,000 3,000 Additional expenses to the Evans caused by the breach of contract and delay, $100 a day for 30 days.... Loss of business on stipulated transportation up the Yukon river for the Noyo 2,500 $7,500 With offsets to the respondent below as follows: Coal kept and used by the Evans, 50 tons, at $15....... Balance of towage money if contract had been performed.... 2,500 3,250 $ 750 Balance in favor of the libelant. $4,250 An entirely accurate estimate of damages seems impossible to be made from the evidence introduced, but the foregoing is undoubtedly just, and should be upheld. As to the exception with regard to the admission of the deposition of Capt. Charles H. Lewis, the master of the Evans, the objection that the deposition was not properly authenticated or verified appears to be covered by the stipulation of the parties, providing that the document purporting to be the deposition of Charles H. Lewis should be treated as if the same had been signed and sworn to by the said deponent, and had been attested and returned. by a competent officer under the stipulation for taking said deposition. The other objections to this deposition are equally untenable. We are also of the opinion that the exception to the item of $71 for costs incurred in the premium paid for bond should not be sustained. The claimant of the libeled vessel secured an order from the district court requiring the libelant to give security to the claimant in the sum of $5,000 to respond in damages as claimed in respondent's cross libel. The order was made in accordance with admiralty rule 53, and the libelant furnished the American Bonding & Trust Company of Baltimore City as surety on the indemnity bond. The cost for this security was $71, as charged in the cost bill and allowed by the district judge. Expenses incurred under a lawful order of the court may be taxed as part of the judgment against the losing party. Neff v. Pennoyer, 3 Sawy. 336, Fed. Cas. No. 10,083; Simpson v. One Hundred and Ten Sticks of Hewn Timber (D. C.) 7 Fed. 243, 246; Dennis v. Eddy, 12 Blatchf. 195, Fed. Cas. No. 3,793. The decree of the district court is affirmed. CENTRAL R. & BANKING CO. OF GEORGIA v. FARMERS' LOAN & TRUST CO. (FARRAR et al., Interveners). (Circuit Court, S. D. Georgia. October 31, 1901.) EQUITY ANCILLARY JURISDICTION OF INTERVENTION-LACHES. A railroad company leased its line to another company, the lease providing that the rental should be paid directly to its stockholders in the nature of dividends on their stock. In subsequent litigation in a federal court, in which mortgages given by the lessee company were foreclosed, a receiver was appointed, who took possession of and operated the leased line, but paid no rental thereon. The lessor company intervened, and became a party to such litigation, and by a compromise settlement, by which the lessee company was reorganized, it was agreed that the lessor company should receive the net earnings of the line under the receivership, and that the reorganized company should pay it a further sum, and take a renewal lease. Such agreement was ratified by the court, the sums were paid, and the lessor company distributed a portion of the fund as a dividend to its stockholders, and used a portion for other purposes. The dividend was accepted by its stockholders, a majority of whom at a stockholders' meeting ratified the company's action. Five years afterwards certain of the stockholders filed a bill of intervention in the suit against the company and the reorganized lessee company, alleging that the entire fund received under the compromise settlement was for rental, and under the terms of the original lease was the property of the stockholders, and not of the corporation, which merely took it in trust; and the bill prayed that the company be required to distribute the remainder of such fund to them. Held, that the reorganized company was not a proper party to such bill, and that the intervention should be dismissed as to the lessor company: (1) Because the original lease was abrogated by the receivership, and the net earnings thereunder awarded to the lessor were not governed by its provisions; (2) because, if the further sum paid by the reorganized company for a renewal of the lease be regarded as rental under the original lease, the bill showed that an amount in excess of such payment had been distributed to the stockholders as a dividend, and received without objection; (3) because the interveners were represented in the original litigation by the company without objection, and their rights as against all other parties to the suit fully determined, and the questions sought to be raised by the intervention, having arisen out of dealings between the company and its stockholders after the litigation was closed so far as such company was concerned, were not properly within the ancillary jurisdiction of the court; (4) because the demands sought to be enforced were stale, and the right to relief barred by laches. In Equity. On demurrer to bill of intervention filed by Robert M. Farrar and others, and on motion to dismiss intervention. Henry A. Alexander, for R. M. Farrar and others. Adams, Freeman, Denmark & Adams and Hardeman, Davis & Turner, for Southwestern R. Co. Lawton & Cunningham, for Central R. & Banking Co. of Georgia. PARDEE, Circuit Judge. This case has been submitted on the demurrer of the Central of Georgia Railway Company to the bill of intervention, and on the motion of the Southwestern Railroad Company to dismiss the intervention on various grounds assigned. The bill of intervention filed December 13, 1900, is very lengthy, and, as the counsel has furnished an analysis of the allegations, combined 112 F.-6 with a statement of the purposes of the bill, the same is taken as the statement of the case, to wit: "Intervention of Robert M. Farrar et al. "(1) Alleges that large sum of money, which was the individual property of petitioner and others of their class, realized by a compromise of their individual claims for defaulted rentals against Central Railroad & Banking Company of Georgia, which sums were ordered and decreed by this court to be paid and distributed to petitioners and others, the true owners thereof. That said sum has never reached the possession of the true owners thereof for which it was intended, but the Southwestern Railroad, to whom said fund was paid for distribution, has diverted the same from its owners. (2) That under lease money was paid directly to the individual stockholders of the Southwestern Railroad by disbursing officer of Central Railroad & Banking Company of Georgia, and at no time passed into possession or control of Southwestern Railroad Company. (3) Said lease continued unbrokenly and continuously in existence until November 1, 1895, when the Southwestern Railroad and the successor of the Central agreed upon a new lease in substitution of the old one. But during period beginning on the 1st of July, 1892, and ending October 31, 1895, the sums due stockholders of Southwestern Railroad Company fell in arrears, and were not paid. (4) Under terms of lease any person a stockholder in Southwestern Railroad Company at the time of period when dividends should have been declared or paid acquired by the very fact a vested personal right against the Central Railroad & Banking Company of Georgia, which was his own individual property, and which could be enforced by suit. Said vested right was in no sense either the property of or vested in Southwestern Railroad Company. The fact that said dividends were not paid at any period did not deprive the person who held the stock of any right. The dividend was predeclared throughout the whole period of lease. (5) Recites fact of filing of bill by Rowena M. Clark, and subsequent filing of bill of Central Railroad & Banking Company of Georgia. One of the principal features of the litigation was the effort of Southwestern Railroad Company to establish its relation to the holders of tripartite bonds of surety and not of co-obligor. About middle of 1895 the various parties reached a settlement of their differences, which was expressed and formulated in a plan of reorganization. (Exhibit B.) In decree confirming the sale under the consolidated mortgage, and on all subsequent orders ratifying the successive steps by which title finally passed to the Central of Georgia Railway Company, the court expressly reserved the right to enforce the obligations assumed in the plan of reorganization, and petitioner shows that any beneficiary of any stipulation in said plan has the right and p1ivilege of invoking the jurisdiction of this court to secure its enforcement. Among the properties placed in the hands of the receiver first appointed was the leasehold interest on the Central in Southwestern Railroad. As the holder of said interest, he and his successors continued to operate and receive the earnings until November 1, 1895. In June, 1892, last dividend was paid to stockholders of Southwestern Railroad. Default was first made in December, 1892. On January 19, 1893, the leasehold interest of the Central in the Southwestern Railroad Company was pledged with other collaterals to the Mercantile Trust Company of New York, and said leasehold interest remained so pledged until the execution of said plan of reorganization, when. in pursuance thereof, on September 18, 1895, Thomas & Ryan bought in said collaterals for benefit of new company. Thomas & Ryan afterwards conveyed said interest to Central of Georgia Railway Company. Said leasehold interest of June 24, 1869, having been thus acquired, the Central of Georgia Railway Company and Southwestern Railroad agreed upon a new lease con tract as a substitute for the old one, and the same went into effect November 1, 1895. (Exhibit C.) The lease of 1869 having thus been continuously in existence during the receivership, each stockholder became entitled in June and December of each year to a semiannual dividend of 3%1⁄2 per cent. These individual claims became a very large amount, and the compromise thereof was the subject of a special provision in the reorganization plan. The new company will obtain new leases of the Southwestern and Augusta & Savannah Railroads at the rental of 5 per cent. upon their respective capital stocks. Any arrears of rentals due these railroad companies, respectively, shall be adjusted on this basis: Order of November 1, 1895, is attached as Exhibit D, and leave of reference is prayed to that and to all parts of record. Inasmuch as said fund referred to in order of November 1, 1895, was the amount due to individual claims of petitioners and others, the same was their property, and could not have been legally paid to the Southwestern Railroad Company for its own use, but must have been paid to it for use of its true owners. Period of default extending from July 1, 1892, to November 1, 1895, covered a period of 3 years. On basis of the compromise a dividend of 163 per cent. was due to stockholders. Dividends are due to those who were stockholders on the 30th of June and 31st of December. Shows that under compromise set out in plan of reorganization the Southwestern stockholders were entitled to $865,183.34. This was not received, as credit of $25,000 was allowed upon the same on account of order of April 14, 1894. This was taken by Southwestern Railroad, and used for its corporate purposes, to the injury of its stockholders. After compromise fund was received by the Southwestern Railroad Company, they should have distributed it; but they did not do this, but diverted it to its own corporate purposes. They paid out of this fund its attorneys, agents, and bankers, $263,668.66, and on December 24, 1895, out of same, 10 per cent. upon par value of their stock,-$519,900; the same to be paid on and after January 14, 1896. Resolution declaring said dividend was as follows: "That a dividend of ten dollars and eighty cents ($10.80) per share on the capital stock of this company is this day declared payable to the stockholders of record on this date on and after the 14th day of January, 1896, at the Central Georgia Bank, Macon, Ga., and at the Citizens' Bank of Savannah, Savannah, Georgia; ten dollars ($10.00) of said dividend being declared for amounts accruing on said stock to November 1, 1895, and eighty cents (.80) thereof being out of amounts accruing under the lease to the Central of Georgia Railway from November 1, 1895, to January 1, 1896. The transfer books of the company will be closed from this date until January 14, 1896.' Alleges that this was not a true dividend, but merely a partial payment by the collecting agent of that to which the owners were entitled. After payment of said alleged dividend, there was left, together with interest, a balance of $83,197.83, which now remains in the hands of said company, and amounts to about $100,000. Alleges that. although attention to the fact that it had no right or title to said fund, it has done nothing to return the same so diverted to its true owners. Robert M. Farrar claims an interest by virtue of an assignment made by Julius M. Alexander dated July 15, 1899. Alexander, assignor, applied partial payment upon his claim against the Southwestern Railroad arising out of ownership of stock. Alexander received written assignment from the former owners of stock in the Southwestern Railroad of the rights of his assignors in 13 shares of stock: Amelia C. Brown owns 17 shares; Amelia C. Brown, executrix, owns 38 shares; Mrs. S. S. Alexander, administratrix of Joseph A. Alexander, deceased, owns 5 shares; Geo. Woodruff, up to May, 1893, owns 377 shares; S. S. Solomons (acquired 1895) owns 100 shares, receiving an assignment from seller as to back dividends. Sets out claims of several parties on page 12. Alleges that neither they nor those who preceded them in title have in any manner ratified or confirmed the action of the Southwestern Railroad in dealing with the fund aforesaid. J. M. Alexander did, on the 10th day of February, 1896, give power of attorney to J. S. Baxter and W. G. Raoul, which authorized them to represent me, and to vote in my name, at all meetings of the stockholders for any purpose whatsoever, until this power of attorney shall be revoked.' This was used to pass the following resolution at ensuing meeting of stockholders: 'Resolved, that all the acts and doings of the board of directors of this company and its president during the past year be, and the same are hereby, ratified.' Alleges that if the fact of the act of said attorneys in voting for said resolution was to deprive petitioner of the interest in the undistributed portion of the compromise fund, such action was unauthorized and void. No one who received the alleged dividends of December 24, 1895, ratified thereby the acts of said |