INGHAM fl. PIERCE.
647 et at.
w: D. Michigan,
S. D. July 30, 1888.)
COSTs-ATTORNEYs'FEES FOR DEPOSITIONS.
Rev. St. U. S.§ 824, allowing solicitors $2.50 fees "for each deposition taken and admitted in evidence in a cause," includes as well depositions in the ordinary W8Y under equity rule 67 8S those taken otherwise. Overruling Tuck v. Olds, 29 Fed. Rep. 883.
Appeal from Taxation of Costs in District Court. In this case, a decree having been entered dismissing the bill with cost.s to the defendants, the clerk, on the application of the defendants being required to tax them, disallowed an item for solicitor's fees 'of "23 depositions at $2.50, $57.50,"on,the authority of Tuck v. Olds, 29 Fed. Rep. 883. The depositions were taken at various places, some within and Bome without the'distdct, before notaries public, under a stipulation that they, should be treated as of the same force and effec.t as if taken under the. sixty-seventh rule regularly appointed special examiners.An appeal having been taken from this disallowance, the di&o tric;t judge, then presiding, reserved the question until the circuit jUdge. should be in attendance. "'::1' RoBs Shinn, (DryenJorth &: Dryenjorth, of counsel,) for complainants. Taggart &: Denison, for defeJ;1dants. Before.JAp:K;SON and SEVERENS, J J. JACKSON, J" (orally.) The district judge, in deciding the present point in Tuck v. Olds, 29 Fed. Rep. 883, followed the course of indicated by Judge TREAT in StraU88 v. Meyer, 22 Fed. Rep. 467. tri, the latter case the language employed by the judge was,somewhat wider than the decillion. We do not think it is necessary to criticise that case,' however, for it is madetoappear to us that throughout this circuit,at least, and as it would seem in the others generally, the practice has been; and is, to aUow such costs in like Rev. St. § 824. And among the reported cases, see Jerman v. Stewart, 12 Fed. Rep. 271; Stimpson v· .Brook$, 3 Blatchf. 456; Factory v. Corning, 7 Blatchf. 16; Wooster v. Ha7),dy, 23 Blatchf. 112, 23 Fed. Rep. 49. Without examining the question on its original merits, we are that the practical of the statute in the other directjon has been generally in the courts of this circuit so long established, and fOf the sake of uniformity, as well, we should overrule the decision in Tuck v. Olds in this allow this item to be taxed. accordingly. . SEVERENS, District Judge, desires that I s40uld express his concurrence .in this opinion.
Acting Commissioner of Pensions.1
(Di8trict Court, E. D. New York. December 28,1888.)
WRITS-SUBPlENA-WITNESS-ATTENDANCE BEFORE PENSION EXAMINER.
. The power of a district court of the United States cannot be invoked to secure,by its subpoona, the attendance of a witness before a special examiner of the pension bureau in the matter of a pension claim.
Application of William McLean, acting commissioner of pensions, for an order upon a witness.
BENEDICT, J. On tbe 23d day of November, 1888, there was presented to me.8 request in the following words: ·'DEPARTlIlENT OF THE INTERWR, BUREAU OF PENSIONS. "WASHINGTON, D. C., November 19, 188B. , "Toany Judge or Clerk of the U:nited States having Jurisdiction-Sm: In pU'rsuance of sections 184, 185, 186 of the Hevised Statutes, and the act of July 25, 1882, I have the honor to request that a sUbpmna may issue com-
manding Mr. Patrick Callahan, a draw-bridge tender, foot of Manhattan avenue, !:Jrookyn, ·NewYork, to appear at a time and place named therein, and make twe answers to such written interrogatories and cross-interrogatories as may besnbmitted to him by Mr.;T. W. G.Atkins, a special examiner of this bureau, and be oraIlyexamined arid cross-examined upon the subject of the claim for pension of .John Horton, Navy, No. 10,977. "Very respectfully, WILLIAM E. McLEAN, "Acting Commissioner." of this request haEl raised for decision the question whether the statutes referred to in the request furnish the court authority to issue its process for the purposes mentioned. It will be observed that th,e subpoona is not required for conducting an lrlVestigation into the facts of 8ny case pending in this court, or in any other courL The requestwhich is assumed to be in conformity with the statutes referred to in it TShows that the subprena was desired for the purpose of enabling the bureau of pensions to make an examination into the facts bearing upon a 'certain claim for a pension pending in that bureau. To secure this end, the commissioner of pensions asks this court by its process to compel the persoIl named to appear before a special examiner of the pension b\1reau, and there submit to examination by such examiner touching the claim referred to in the request. For such purpose the aid of this court cannot in my opinion be invoked. The pension bureau is not a court, nor can any officer thereof be vested with judicial functions. The proceeding in aid of which the process of this court is asked is an executive examination, pending in an executive department of the government, not ll. j udioial iilquhy, pending before a court. In cases or controversies pending before the courts of the United States those courts have power to compel the attendance of persons as witnesses, but, in my opinion,
G. Benedict, Esq., of the New York bar.