The by the plaintiffs that .the receipt given by Kimball or the Appleton Bank shows, as to the secureties it CQverEl, that the transaction was a pledge, and not a sale. This question has already been carefully 90nsidered in Whiting v. Wellington and Com. v. Reading Sav. Bank. In the conclusion there reached, which is adverse to the plaintiffs' contention, I concur. There is no force in the objection that these purch&ses were Ot;l account of the Appleton National ,Bank, and that, therefore, no' title passel! ,because national banks are prohibited from The evidence is far from supporting the proposition that purchases were made on account of the "Appleton Bank; but, even if they were, it could D,otavail these plaintiffs. National Bank v. Matihew8,98 U. S. 621; National Bank v. Whitney, 103 U. S. 99; Fortier v. N,atiunal.pank, 112 U. S. 439, 5 Sup. Ct. Rep. 234; ReynoldJJ v,. ,NationalBanlc, 112 U. S. 405.5 Sup. Ct. Rep. 213. I find,nothing to take ,this case out from the decisions in, Whiting ,v. WeUin¢.oo,Cotn. v. Reading Sav. Bank, and Holden v. I'help8,and therefore the bill should be dismissed, with costs.
Tucx, V. OLDS and otherS.,
D. Michigan, 8. D. October Term, 1886.)
OoSTS-W;r.TNE,SS :M:AXINGEXAMINATION OF DocK.
theilollU.! in quo, a certain dock, the exact location of which was in question,
A fee to witness for his services in making a preliminary examInation of
cannotb,e allowed to be, taxed as costs. costs being the creature of statute, and the statute not authorizing such an allowance; and it is immaterial that the survey was made in order that intelligent testimony might be given upon the questJ,on of location. ' Rev. St., U. S.§ 824, allowing an attorney's or solicitor's fee of $2.50 for each'deposition taken and admitted in evidence in a cause, does not apply to depositions taken before any of the regular exatnining officers of the court, in the ordinary way of taking depositions, or before some person agreed on by the parties to act as examiner, but applies only to depositions taken de bene uBe,and in 'Iluch other cases, not .within the scope of the ordinary method of taking testimony in causes pendingin the federal courts, as may arise. A fee to a party to the actiqn is taxable in the federal court as costs, provided the party causes it to appear by his atlldavit, annexed to his bill of costs, that his attendance was solely for the purpose of giving his evidence in the action, an4 not to assist in its. management. these facts do appear the affidavit in co.use.. yet, where the orq.ission J;lqt excepted to, th.e fee WIll be alloW.ed as already taxed, upon the partyfllIDg al1 affidavit statiills.:,the facts. No allowance of traveling fells can be made; Where the PlUty;does not appeal: from thereof by t}l8 clerlt.
FOR TAJl;ING DEPOSITIONS.
B.um-Wrn'iEBS FEE TQ PAliTY, TO ACTION.
On motion for. of costs. G.amon, fOJ:complainant. and A., Wolf, f0l'defendants.
SEvERENs, J. The complainant's costs in this cause having been taxed, a motion for retaxation thereof is now made,'presenting three points for determination: . First. Exception is taken to the allowance by the taxing officer of nine dollars fora survey made by one of the witnesses of the locus 'in quo, a cerexact location of which was somewhat in controversy in the' case: The regular fees of this witness in the case appear to have been duly taxed according to the provisions of law,and this item of nine dollars is not for his fees as a witness, but for his services in making a preliminary sur,vey of the dock for the purpose of qualifying him to testify with precision as to its situation. However desirable it may have been in the interest of the complainant that such survey should be made, in order that intelligent testii:r1ony upon that subject might be presented, and reasonable. as it might seem, as an abstract proposition, that he should be for the expenditure thereby incurred, as a question of law I hav'e no doubt that the' item must be disallowed. Costs are the creature of statute law, andthete isnothing'in the statutes regulating the taxation of costs which would justify the allowance of this item. Second. Exception is also taken to the allowance of $10 as solicitor's fees for the taking of four depositions in the cause, which were taken at Petoskey, before John G. Hill, Esq., pursuant tO,an order of this court, based upon the stipuhiti6:ri of the solicitors in the cause, constituting him a special examiner for that purpose. It will be seen, therefore, that these depositIons, although not taken before a regular examiner of this court, were taken in strict analogy to the ordinary practice of the regulating the taking of testimony in, causes, and thnt the authority to take them was conferred by thecourtio compliance with the stipulation of the parties. I do not think that the statute providing for the taxation of attOrney's or solicitor's fees for taking depositions covers, either by its express terms or by any fair interpretation thereof, depositions taken before any of the regular examining officers of the court in the ordinary way of taking testimony inequity causes, or, as these were, before some person who, pursuant to the stipulation of the parties, is empowered to act in lieu of such an examiner. It is probable that the statutory provision was intended to provide for compensation in cases where depositions are taken de bene esse, and· in such other cases, not within the scope of the ordinary method of taking testimony in causes pending in federal courts, as may arise. ,The exception to this item must also be sustained. The third exception relates to the allowance of an: item of three dollars .to the complainant for his atten4an.ce as a witness. The bill, as presented to the taxing officer, eontained a charge also for complainant's traveling fees' as a witness, but that charge was disallowed by the clerk. The objection to the allowance for. his attendance as a witness is put upon fora party are not taxable at all in the broad ground that witness this court. I cannot assent to that proposition, but shall hold that in this court, as is held in the courts of the state, a party is entitled to
CHENEY V. STONE.
witness fees for his own attendance and travel, provided he causes it to appear by his affidavit attached to the bill of costs. that his attendance was solely for the purpose of giving his evidence in the cause, and not to assist in its management, aod that the travel was solely for the purpose of giving his evidence therein. These faCts do not appear by the affidavit filed in this cause, nor is the want of such showing excepted to specifically on this ground by the defendants. Under, these circumstances, be allowed as althe complainaqt's fees for attendance as a witness ready taxed, upon his filing a supplemental 'affidavit in conformity to this opinion, but he'cannot now be allowed his traveling fees, as he did not appeal from the disallowance thereof by the clerk.
,Ex'r, 'etc., '11.
.(Oif'cuit .(Jourt, D. Nebraska.
1.LDIlTA..TIONS-NoTE-,-MonTGAGE FORECLOSUltE-PuRCHASE FOR VALUE.
In suit to a brought within the 10 years limit.ed. for sl1ch suit pythe of Neqrallk!l, the plaintiff is not deprived the benefit of the' fact that· he lsa purchaser for value, and before of the notes and mortgage, by the fact that the statute of limitations has run on the notes) ' . Possession 'of negotiable paper duly indorsed is prima facie evidence of bona . ' .
fide purchase for value before maturity.2
MORTGAGlll FonECLOSURE-CLAIM OF BONA FIDE PuRCHASER-EVIDENCE.
In anactiou brought in Nebraska by one claiming, to be the executor of a former resident of New York to foreclose a mortgage of which it was claimed that ·the testator was a bona jlde purchaser before maturity, it appeared' that a fQrmer8ction to foreclose had been brought by the testator in his life-time, but 'fas dismissed on account of .the failure of the plaintiff to submit to examination; that in that action defendant took out an order for plaintiff's examinatlon;'and at the appointed' time and place, the place being an office in New York city, a man presented himself claiming to be the plaintiff. but, when questioned about his name,. embarrassed, and immediately left the room, and did not reappear for examination. It W8S also shown that the executor,. who claimed to have himself sold the mortgage to the testator, wrote letters to the mortgagor urging payment of the interest due on the mortgage after the date of the alleged sale. Held, that these circumstances were' not sufficient 'to justify a conclusion that there was no such person as the alleged testator. and that the pretended sale was fictitious, as against the positive testimollyof several witnesses to their acquaintance with the testator, and their .knowledge of the circumstances of the sale. In. a state where an executor appointed in another state is allowed to sue like any. other non-resident, the right of one to, maintain an action as such an executor, on securities in his hands, is sufficiently shown by the production of letters testamentary issued by a c/Junty court of another state having general jlUisdiction of the settlement of estates, although the testator was a resident
FOREIGN EXECUTOR-AC'I'ION By-RIGHT TO MAINTAIN.
1 See Cheney v.Janssen, (Neb.) 29 N. W. Rep. 289, and note; Cheney v. Woodruff, Id. J175, and note. , I See Manistee Nat. Bank v. Seymour, (Mich.) 31 N. W.Rep. 140, and note.