CHENEY V. STONE.
885
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.
Cl1ENEY
,Ex'r, 'etc., '11.
STONE
and others· 1886.)
.(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 . ' .
2.
fide purchase for value before maturity.2
3.
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
4.
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.
886
FEDERAL' REPORTlm.
'of a third state when he 'died. and the recitals of the -letters only show that
15;
he had ,property in the state, and not in the county where the let,ters were isthe will being probated there.· sued, and there is no evidence
JUDGMD':r-OF DiSMISSAL-WHEN A BAR.
of
If a suit is dismissed on accoiInt of the failure of plaintiff to submit himself to examination, the judgment is not a bar to 8. subsequent suit.
'
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_
Action begun July 1884, to foreclose a mortgage given to secure a loan of $1,000 and interest. There were two notes,and ten interest coupon notes, which, '\'Vith the mortgage, were dated July 16, 1872. The principal notes were payable in. five years; the ,coupons, in one, two, three, four, and five years, respectively. Usury,statute of limitations, and former adjudication, among other defenses, were set up. Among other evidence the defendant introduced a deposition of P. D. Cheney, taken in another suit, to which were attached letters written by Cheney, dated in July and August, 1876, urging payment of the interest coupons. Cheney testified, in the present case, that he sold the notes and mortgage sued on in April, 1875, to the testator, William G. Davis. C. E. Magoon, (0. P. Maaon, of counsel,) for complainant. S. P. Davidson and T. Appleget, for defendants, .claimed, among other things, that the defense of usury was not avoided by the fact, if shown, that plaintiff's testator was a brma fide purchaser of the notes for value; lind' before maturity, as the five-years statute oflifuitations had run on the notesjciting Oheney v. Cwper, 14 Neb. 419, IGN. W. Rep. 471. BREWER, J. This is an action. to, foreclose a mortgage. Several de,. {enses, such as-usury and the statute of limitations, are interposed. Many of the quesiions presented by the pleadings [IBVe been already considered by main prior cases in this district of a like fiature, and fur.. to them is unneceSSat'y. Some of them; have 'also been considered by the supreme conrtof this state, and my conclusions, I am to fully in accord with those of ,that learned court. Oheney v. CQfY[ier, 14 Neb. 415,16 N,. W. Rep. 47k,oheney v. Woodruff, 29 N. W. Rep. 275; Mundy v. Whittemore, 15 Neb; 647,19 N. W. Rep. 694. Two matters are, however, presented which require notice. 1. Complainant claims that his testator was a lxma fide purchaser before maturity. 'Defendants insist that the testimonyfails to establish this fact. It must be borne in mind that the possession of negotiable paper, duly indorsed,· is prima facie evidence of a bona fide purchase before matliat.usury in the turity.. Concede, for the purpose of, inception of the paper. which in this case is abundantly proved, away with the prima facie evidence from such possession. We have the positive testimbny of and4is 1:jrother, to the purchase,itStime, .amount paid, i.lnd by one, at .lea8t,· the information given to thepurobaser. The cir<,'llmstance8 thus disclosedi show a purchase before maturity, payment of full value, and indicate entire. igno-
SSee Lewis »&(1. Ren. - . v.
' ..
,
(Cal,) 11 Pac. Rep. .'
and note; Moore v. J.ordan, (Kan.)13' " ,',