CHICAGO & N. W. RY. CO.
324, the court use these words: "The probate of the will does 'not strengthen the title, but gives the will effect il.fl evidence and makes it available." In Riclwrds v. Pierce, 44 Mich. 444, 7 N. W. Rep. 54, suit was brought in ejectment by the grantee or devisee. The will was made and probated in New York, hut not probated in Michigan until after suit brought. The court held, under a statute similar to section 29 of the Kansas statute, that the suit could be maintained, and that the probate related back to the commencement of the suit. The case of Brazier v. Hudson, 8 8im. 67, is cited to the effect that subsequent probate validates acts that would he valid if probate had preceded the acts. The court further say that the probate merely furnished the means ofestablishing by record evidence the validity of an existing right, and ,that for every valuable purpose touching the existence and transfer of title the probate was retroactive. In Crusoe v. Butler, 36 Miss. 150, the will in controversy was similar to the one in this case, and the statute of Mississippi silllilar to the Kansas statute. The court say the power comes from the will, and the probate was merely to authenticate the evidence hy which the power was established, and the subsequent probate of the will made valid the title under a deed made prior thereto. This case is a strong one, anJ the subject is fully discussed on pages 170 and 171. The case of Wilson v. Wilson, 54 Mo. 213, is another case directly in point. The court holds that the will giving power of sale vests the title in the executor at the death of the testator, and the executor's deed made before the probate of the will is a good conveyance, provided the will be subsequently probated. In this case the will was probated two years after the deed was made. Many other cases might be cited to the same import, but it seems to me these are sufficient. Judgment must go for defendant.
SMITH f1. CHICAGO
& N. W. Ry.
(Oircuit Oourt, S. D.
In the taxation of costs in the federal courts. the clerk has no authority to allow mileage for witnesses living at 8 distance greater than 100 miles, unless the court shall, for good cause shown, otherwise direct.
TUATION-::MILEAGE OF WITNESSES.
At Law. On motion to retax costs. J. Lyman and J. G. Bull, for plaintiff. Hubbard & Dawley, for defendant. Before 8HIRAS and LOVE, JJ. 8HIRAS, J. In the above action a judgment was rendered at a previous term, assessing the costs against the defendant. In the taxation thereof the clerk allowed mileage for several witnesses summoned on behalf of plaintiff, for distances in excess of 100 miles, and the present v.38F .no.4-21
nlotion is made for the purpose of reducing the mileage thus allowed, on the ground that a prevailing party cannot compel his adversary to pay mileage for. 'witnesses for distances exceeding 100 miles. Section 861 of the Revised Statutes provides that the mode of proOf in actions at law shall be oral testimony and examination of the witnesses in open court, except as herein specially provided." By section 863 it is provided that the testimony of any witness may be taken in any civil canse by deposition de bene eBse when the witness lives at a greater distance from the place of trial than 100 miles. Section 876 enacts that subprenas for witnesses may run into districts 'other than the one wherein the cause is pending,provided that the witnesses do not live at a place more than 100 miles from the place of triaL If a witness lives at a distance not greater than 100 miles from the place of trial, whether within or without the district wherein the cause -is pending, the adversary party has the right to insist upon his presence in open court; and his deposition cannot be taken and used unless he comes within one of the exceptions found in sections 863, '865, and 866; of the Revised Statutes. If, however, the witness'resides at a point over 100 mUes distant from the place oftrial, or is about to go'upon aRea-voyage, or beyond the limits of the United States, oris ancient or infirm,or is imprisoned,then his deposition may be taken. Unquestionably, either party may bring witnesses from any distance, and examine them in open court; and, as between the witnesses and the party who thus produces them, the witnesses will to charge be entitled to their proper mileage and PfJT' diem, being for· the distaMe actually traveled. When it is sought, however, to hold the other party liable'for such costs, the latter has the right to insist that, as the party calling the witness cduld have taken and used the deposition of the witnesses residing more than 100 miles from the place of trial, he should not be compelled to pay costs thus made for the convenience of his opponent. It is the duty of the prevailing party, as in case of damages, to so conduct himself that the amount of the costs or damages shall not be unnecessarily increased. The genel'lil rule, therefore, is that, as testimony by deposition can be taken when the witness resides more than 100 miles' from the place of trial, mileage for a greater distance is not ordinarily chargeable against the party not summoning the ",itness. The p:rinciple underlying the rule is that,.as the party has tJ;ie.'right f!.il,d opportunity to take the testimony by deposition, and thus save the cost of exce.'>sive mileage; he-should do so, and thus reduce the cost as much as possible. If, however, he deems it advisable to bring the witness in person, he may do so; but in such case the extra mileage cannot be adjudged against his opponent. There may afise cases justifying the court, in the exercise of-a proper discretion, in applying a different rule. If a party, upon the eve of trial, or perhaps during the trial, amends his pleading, or. introduces such a change of issues as requires the, other party to put'in the testimony of a witness living at a distance greater. than 100 miles, and there is not time sufficient to enable a deposition to be taken, and the party is compelled to produce the witDess in persbn, in such case the court might allow mileage for the entir£'
TRENKOLM: fl. (X)MMERCIAL NAT. BANK.
distance traveled to be taxed against the losing party. hOwever, would be exceptional, and the rule can 'be: varied, if at aU, only by the order of the court in thE! special C8JSe. In taxing'costs'bytb:El clerk the limit of mileage is 100 miles, andi this ru.'le cannot'be 'varied . from, unless the court shall, for'good cause shown, otherwise direct.' The motion for retaxation in the present cause is granted.
LoVE, J. cordingly.
I concur in the foregoing.
Let jUdgment be enteredao[fl: ,
'l'BENHOLM, Comptroller, v. COMMERCIAL
, (Oircuit Oourt, No
April 8, 1889.)
BANKS AND BANKING-NATIONAL BANKS-FoRFEITURE OF ING.
Rev. St. U. S. 5239, declares that. -if the directors of any national banking association sball knowingly violate or knowingly permit any of the-oBi· cars. agents, or servants of the association to violate any of the provisions of this title. all the ri,?hts. and of th!l Ilssociati9:n Shall be thereby forfeited. 'The title referred to IS title 62, w):uch embraces tbe subject of the organization, pO.wers, duties. and liabilities 6f national banks.' Held that, as the section only refers to acts done by the directors. or by the executive oBicers with the knowledge of the directors. an information seeking a forfeiture, which charges that the association did the act, is insuBicient. In an information that "the banking ,allsociation and the directors thereof did knowingly permit," etc.. the allegation that the association, aside from the directors. permitted the doing of the alleged acts, tenders an immaterial issue, apd should be stricken out on motion. '
On Motion to Strike out Parts of Information. Information filed by William L. Trenholm, comptroller, under Rev. St. U. S. § 5239, for the forfeiture of the charter of the Commercial National Bank of Dubuque. T. P. Murphy, U. S. Dist. Atty., and Wm. Graham, for petitioner. E. McCooey, and J. H. Shields, for defendant.
SHIRAS, J. The information filed in this cause contains some 24 articles, in which are set forth the facts relied upon as grounds for forfeiting the charter of the bank. They present, however, only two general grounds for such action, to-wit: That the bank had loaned amounts exceeding 10 per cent. of its capital to certain named parties or corporations, in violation of the provisions of section 5200 of the Revised Statutes; and that in certain statements of the condition of the bank forwarded to the comptroller of the currency a false statement of the amounts of loans, discounts, and overdrafts was included. In the articles, 19 in number, charging the loan of amounts in excess of 10 per cent. of the paid-in capital to the several parties named in the articles, it is averred that "the said banking association and the directors thereof did knowingly