Id. at 132. A similar conclusion was made under former Admiralty Rule 50 in Solomon v. Bruchhausen, 305 F.2d 941, 1963 A.M.C. 210 (2d Cir. 1962), cert. denied sub nom Isbrandtsen v. Maximo, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499, 1963 A.M.C. 1646 (1963). There, the district court had ordered libellants to post counter-security for respondent's cross-claim of abuse of process in the arrest of respondent's vessels.

3 Moore's Federal Practice ¶ 13.13, at 13-308 (2d ed. 1974). See also Solomon v. Bruchhausen, 305 F.2d 941, 943 (2d Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499 (1963). Moreover, even if this counterclaim avoids dismissal on grounds of prematurity because it is technically phrased in terms of libel and not malicious prosecution, the case law seems clear that a counterclaim which stems from the filing of the main action and subsequent alleged defamations is not a compulsory counterclaim covered by Rule 13(a) See Wigglesworth v. Teamsters Local Union No. 592, 68 F.R.D. 609 (E.D.Va. 1975); Bose Corp. v. Consumers Union of the United States, Inc., supra; Fidelity Casualty Co. Of New York v. Coffelt, 11 F.R.D. 443 (S.D. Iowa 1951) (allegations of pre-complaint libel as well); Williams v. Robinson, 1 F.R.D. 211 (D.D.C. 1940); cf. also Aviation Materials, Inc. v. Pinney, 65 F.R.D. 357 (N.D.Okl. 1975).

This circuit has long adhered to the same view, as evidenced by use of mandamus as the appropriate remedy to test the validity of a transfer order and in light of the rule that mandamus will not be considered where an appeal would lie. See Cessna Aircraft Company v. Brown, 348 F.2d 689 (10th Cir. 1965); Solomon v. Bruchhausen, 305 F.2d 941 (2d Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499 (1963). Thus, if this court has jurisdiction to review the two orders which have been specified here of the Colorado District Court that jurisdiction lies exclusively in the issuance of an extraordinary writ.

Finally, the stay order does not reach the merits of the claim and in no way determines, denies, or prejudices any substantive rights of the parties. It therefore cannot be said to be an interlocutory decree in a seaman's suit that determines the rights and liabilities of the parties so as to be appealable within the meaning of 28 U.S.C. § 1292(a)(3).Solomon v. Bruchhausen, 305 F.2d 941, 943 (2d Cir. 1962), cert. denied sub nom. Isbrandtsen Co., Inc. v. Maximo, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499 (1963); 16 Wright, Miller, Cooper Gressman, Federal Practice Procedure § 3927, at 115-16 (1977). Cf. Wallin v. Keegan, 426 F.2d 1313, 1314 (5th Cir. 1970).

We hold that the specific exemption of § 1916 for seamen from prepaying fees or costs prevents the marshal from requiring prepayment of or security for such "expenses" as watchmen's salaries and insurance premiums. In Solomon v. Bruchhausen, 305 F.2d 941, 943 (2d Cir. 1962), cert. denied, Isbrandtsen Co. v. Maximo, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499 (1963), this court said: "This error led the court to contravene a fundamental facet of the broad Congressional policy favoring and facilitating seamen's wage claims suits.

cure review in the transferee circuit invokes Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which it would read as holding that an interlocutory order must be considered as "final" under 28 U.S.C. § 1291 if there will be no effective way to appeal at a later date. Apart from the point that Texaco can move in the District of New Jersey for retransfer and that the cited decisions would not preclude review of a denial of that motion on appeal from a final judgment, the inarticulate premise that Cohen embraces every order that cannot be later reviewed on appeal is a false one — as our recent decision in Donlon Industries, Inc. v. Forte, 402 F.2d 935, shows. If Texaco is right, we were wrong in entertaining petitions for mandamus in Ackert v. Bryan, 299 F.2d 65 (2 Cir. 1962), and in A. Olinick Sons v. Dempster Bros., Inc., 365 F.2d 439 (2 Cir. 1966), in light of the rule that mandamus will not be considered when an appeal would lie, see Solomon v. Bruchhausen, 305 F.2d 941 (2 Cir. 1962), cert. denied Isbrandtsen Co. v. Maximo, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499 (1963), and the extended and generally negative discussion in the Olinick case of the availability of § 1292(b) as a vehicle for obtaining review of transfer orders, 365 F.2d at 442-443, was wholly unnecessary. Moreover, both the Third Circuit and the Supreme Court would have been wrong in considering Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), as appropriate for mandamus. There is simply no basis for thinking that, despite twenty years of judicial construction that orders under § 1404(a) can be reviewed only by mandamus and then, where the order is within the court's power, on a most restricted basis, one type of order under § 1404(a) has been appealable all along.

Despite the similarity to the Shanferoke case, the Supreme Court held that admiralty courts had the power, without need to resort to the aid of equity, to delay actions before them pending the outcome of some other proceeding. Such an order was not one issued by equity and therefore not appealable. This court has consistently followed the holding of Schoenamsgruber. Moran Towing Transportation Co. v. United States, 290 F.2d 660 (2 Cir. 1961); Solomon v. Bruchhausen, 305 F.2d 941 (2 Cir. 1962); Lowry Co. v. SS LeMoyne D'Iberville, 2 Cir., 372 F.2d 123, January 21, 1967 [proceedings stayed pending foreign arbitration]. As an historical matter, there seems to be no reason why the chancellor would not have enjoined proceedings before courts of admiralty as well as before courts of law.

The compromise reached by Judge Tenney was an exercise of his discretion in evaluating the strength of Bancroft's allegations of poverty, the necessity of security to insure payment of the respective claims, and the possibility of recovery on each of the claims. We must note that our decision in Solomon v. Bruchhausen, 305 F.2d 941 (2 Cir. 1962), cert. denied, sub nom Isbrandtsen Co. v. Maximo, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499 (1963), casts some doubt on the appealability of orders regarding security. While the situation there was somewhat different than that which we review here, we must say that as we are now advised, we think the order there under review was appealable under the principles discussed in Cohen v. Beneficial Indus. Finance Co., supra.

28 U.S.C. § 1292. The principle that piecemeal appeals will not be entertained and that the appeals courts jealously guard their jurisdiction against the imposition of such attempted appeals is so well settled that only a reference to some representative decisions is necessary. E.g., Andrews v. United States, 373 U.S. 334, 339-340, 83 S.Ct. 1236, 10 L.Ed.2d 383; Columbia Broadcasting System v. Amana Refrigeration, Inc., 7 Cir., 271 F.2d 257, 259; Packard Motor Car Co. v. Gem Mfg. Co., 7 Cir., 187 F.2d 65, 66; Winsor v. Daumit, 7 Cir., 179 F.2d 475, 476, 478; Solomon v. Bruchhausen, 2 Cir., 305 F.2d 941, 943. Defendants argue that an attachment should be treated as a temporary injunction, and that an appeal is proper in this instance by analogy to the temporary injunction situation.

Generally, courts have held that a claim for malicious prosecution cannot be a compulsory counterclaim in the allegedly wrongfully prosecuted action because such a claim depends on the outcome of the underlying lawsuit, and does not come into existence until that action is terminated. See, e.g., Olsen v. Puntervold, 338 F.2d 21 (5th Cir. 1964); Solomon v. Bruchhausen, 305 F.2d 941, 943 (2nd Cir. 1962). The court in Solomon noted that a claim for malicious prosecution is not even allowed as a permissive counterclaim in the underlying action because it is premature.