TOWN OF EpSOM.
(Circuit Court, D. New Hampshire. March 20, 1883.)
COSTS-VIEW OF GROUND BY JURy-ALLOWANCE OF EXPENSES.
Where, by the practice and, procedure of the state courts of record within the district, the costs and expenses of viewing the ground by the jury in civil actions are allowed, such costs and expenses may be allowed in courts of the United I::!tates held within such district, in civil suits other than suits in equity or admiralty, under the provisions of section 914 of the Revised Statutes, which adopts as near as may be the practice, pleadings, forms, and modes of procedure of the state courts of the district in whicll such United States courts are held.
Where there have been two trials of It the flrst of which resulted in a disagreement of the jury and the second 111 a vt:l'dict tor tilt: defendant, out one . docket fee of $20 will be allowed.
Copeland d: Edgerly and Wallace Hackett, for plaintiff.
Wm. L. Foster, Thomas J. Smith, and John Y. Mugridge, for defendant. CLARK, J. This was an action by the plaintiff against the town, for damages to himself and team from a defect in a highway which the· town was nnder obligation to keep in reasonable repair. There were two trials. On the first the jury disagreed; at the second there was a verdict and judgment for the defendant. At each of these trials the jury, upon motion of the defendant, was out by the court, under the directiono(the marshal, to view the highway where the accident happened, and where the damage was SURtained by the plaintiff. The statute of New Hampshire provides (chapter 231, §§ 17, 18, p. 537, Gen. Laws) that.. In trials of actions involving· questions of right to real estate. or in which the examination of places or objects may aid the jury in understanding the testimony, the court, on motioil of either party, may, in their discretion, direct a view of the premises by the jury, under such rules as they may prescribe." "The cost of such view shall be subject to adjudication as to the whole or allY part thereof, as the court may deem equitable."
The statute of the United States proyides, (section 914, p. 174, Rev. St., 2d Ed. 1878:)
"The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit or district courts. shall conform as near as may be to the practice, pleadings, and forms and modes
TOWN OF EPSOM.
of proceeding existing at the time in like causes in the conrts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding."
The defendant claimed to recover, as costs from the plaintiff, the expenses paid out by the town in conveying the jury, in each of the trials, to the place of view, and in returning them to the court; and also a further sum for the board and lodging of the jurors upon tho last view, which detained them "over night." It is oonceded tha,t there is no statute of the United States that provides for the allowanoe of suoh an expenditure, as oosts; and in Parker v. Bigler, 1 Fisher, 285, it was held that no costs oould be recovered by the prevailing party but the legal tax.ed costs. The same deoision was sub· stantially made in Day v. Woodworth, 13 How. 363. But this rigid rule has not been followed in this district or circuit. The fee bill, or fees enumerated in the statute, has not been construed as exolusi"e of other necessary expensa litis. Thus the attendance and travel of parties has been taxed and allowed in this distriot, and in Massachusetts, for very many years, uniformly iSO, so far as Ile!l(rn. No statute of the United States prescribes or authorizes such an allowanoe, and possibly the practice may have arisen under the act of September 29, 1789,-10ng since repealed,-which prescribed that "the rates of fees, except fees to judges in the circuit and distriot courts, in snits at common law, shall be the same in each state respectively as are now allowed in the supreme courts of the same." Costs of parties' travel and attendance were then allpwed,andso of the expense of views by the jury. . In the case of Stockbridge Iron Co. v. Cone Iron W01'ks, 102 Mass. 80, 89, $4:,800 was allowed for a view, and CHA.PMAN, O. J., in delivering the opinion of the coud, said: "Courts of law have power to allow reasonable expenses of surveys and views in proper cases, and the fee bill does not apply to the expense of such proceedings." This was in a statQ court. I am inclined in this case to allow as oosts to be recovered by the defendant of the. plaintiff the expense paid by the defendant as carriage hire and car to take the jury to the place of view and back to the court-$15 at the first trial and $46.40 on the second, the distance being much greater,-and to disallow the sum of $19.50 for the board and lodging of the jury over night on the second view, as this expenditUl'e should have been borne by the jurors out of their per diem allowance while makiug the view; and this I do on the more distinct ground that the law of the United States (,section 914, Rev.
734 St.) above cited requires the practice and mode of proceeding in civil other than equity and. admiralty in.the circuit and distrICt courts, to conform, as near as may be, to the .practice and mode of proceeding in the state 'courts; and it is a mode of proceeding in the state courts of this distl'ict, in a case where a view may aid the jury to understand the testimony, to direct such view upon moiion of either party, and it is theptactice of the court to allow such part or all of' the costs as may be deemed equitable. The defendant claims to recover a docket fee of $20 at the former trial: when the jury disagreed, and a like fee at the· second trial, when judgment was for the defendant; but ohly one docket fee can be allowed. Witness fees, travel and attendance, and other items allowed as taxed.
GILLESPIE and others, Bankrupts.
(Districe Court, S.D. New York.
CHOSE IN ACTION-CoNFLICTING ASSIGNMENTS.
A subsequent bonafide assignee of a chose in actioD, who, for a valuable consideration, after due inquiry, and without notice of any prior assignment, gives immediate notice of the assignment to the debtor, or trustee of the fund, and takes possession of the evidences of'debt, has a superior equity over a prior assignee of the same debt or fund, who'leaves the evidences of the debt with the assignor, and gives no notice of the assignment to the debtor or trustee.
In Bankruptcy. The firm of Gillespie & Co. having been adjudicated bankrupts, T. J. Daly & Co., holders of four promissory notes of the bankrupts, payable to their own order and indorsed in blank, proved the notes in bankruptcy, and in March, 1874, received a dividend of 25 per cent. thereon, which was indorsed upon the notes. Afterwards, on September 13, 1875, Daly & Co., being in embarrassed circumstances, made a composition with their own creditors, and, for the purpose of securing payment of certain composition notes, executed an assignment of all their assets to Amasa A. Redfield, among which assets the claim against the Gillespie estate was mentioned. The Gillespie notes were not delivered, to Redfield, nor did the latter notify the assignee in bankruptcy of the transfer to him. On the ninth of December, 1876, Daly & Co., being still in possession of the notes, retleived from the assignee of Gillespie a further dividend of 5 per cent., which was likewise indorsed upon the notes, and the receipt thereof