Pike agt. Nash and another. some of them." It does not, even as to those last referred to, allude to them, as other than those already mentioned. Such a statement as this, does not tend at all to show, "how the witnesses are material," within the meaning of rule 45. To do that, it should be shown in some sufficiently distinct manner, what facts were to be proved by the several witnesses named, specifying them, so that the court may judge of the materiality of their testimony. The motion must be denied, with $10 costs. SUPREME COURT. PHILIP PIKE agt. EDWIN B. NASH and another. Where an issue in a cause is such, (examination of a long account, &c.,) that the plaintiff's attorney must know that according to the ordinary practice of the court, the cause will be referred by the court, and where he has been repeatedly requested by the defendant's attorney, before the circuit, to consent to a reference, the plaintiff on succeeding in the cause before the referee, is not entitled to charge for his witnesses' fees in attending the circuit at which the cause was referred. A witness subpoenaed away from his residence, to attend the trial of a cause as a witness, is entitled to his travel fees, to be estimated from his residence. And he has a right to demand fees and receive such fees, before he can be compelled to attend. Washington Special Term, June, 1857. MOTION for retaxation of costs. The cause was noticed for trial by both sides, at the September circuit, 1856, in Washington county. The action involved the examination of a long account, and was clearly referable. The defendant's attorney wrote to plaintiff's attor ney, two or three weeks before the trial, proposing to refer the cause, but received no answer, and again drew his attention to it orally. The plaintiff's attorney, though not absolutely de Pike agt. Nash and another. clining, did not absolutely consent, and defendant's attorney served notice of motion to refer, on the Saturday preceding the circuit, on Tuesday following. The plaintiff had subpoenaed his witnesses before this, one of whom resided in the city of New-York. The affidavit of the clerk of the plaintiff's attor ney, deposed that the notice of motion, was not served in time to countermand the service of subpoenas. The witnesses actually attended one day. The cause was referred by the court. On the hearing before the referee, a witness residing in Brooklyn, was subpoenaed at Schuylerville, and on consulting counsel was advised that he was not obliged to attend, unless he was tendered the amount of his travel fees, from his place of residence to the place of hearing at Fort Edward, and refused otherwise to attend. The plaintiff paid him his full travel fees for four hundred miles, being $16. The clerk struck out all the witnesses' fees for attendance at September circuit, and also all the travel fees of the witness subpoenaed at Schuylerville, except for the distance to and from Fort Edward. The plaintiff moves for a re-adjustment. H. W. NORTHUP, for plaintiff. C. L. ALLEN, Justice. The clerk was right in refusing to allow for the witnesses' fees at the circuit in September, 1856. The plaintiff's attorney knew that according to the course and practice of the court, the cause would be referred. The attorney for defendants, swears that he wrote to the plaintiff's attorney, on the 9th of September, about a fortnight before the circuit, proposing to refer, to which he received no answer; that afterwards, before serving the notice of motion, he saw the plaintiff's attorney, and stated to him, that the issues were such, that the court would probably refer the cause, whether the parties consented or not; and again proposed the reference. The attorney did not positively decline, but postponed agreeing thereto, and defendant finally served his notice of motion on the 19th of September. On the following week, Pike agt. Nash and another. when the circuit was held, the defendant's attorney also once proposed to refer the cause on his part, which was not at that time assented to. Under these circumstances, it is to be presumed that the attorney well knew, that the cause would be referred; and he should have so advised his client; and not have put him to the expense of bringing his witnesses to court, when he had every reason to believe and know that the cause would not be tried. As to the other item, I think the clerk erred in not allowing travel fees for the whole distance from the witness's place of residence. The witness, it is true, was subpoenaed at Schuylerville, where he was on business, and when he was about to return home. He insisted upon the whole amount of travel fees, from his place of residence, and refused otherwise to attend. It has been decided in this district, in a similar case, that he was entitled to it; and the plaintiff paid him the amount in good faith, and to secure his attendance before the referee. He was detained and prevented from returning home, or it may have been necessary for him to return and come back again. It is unnecessary, however, to dwell upon the question, as the decision already made, must control the pres ent case. The motion for adjustment must be granted, unless defendant's attorney stipulates in writing, within twenty days, that the clerk may add $14.96, to the amount stricken out from this item, in which case, the motion is to be denied without costs to either party. Order accordingly. In the Matter of the Bowery Bank. SUPREME COURT. In the Matter of the BOWERY BANK, on the Petition of A. H. NICOLAY. The Revised Statutes provide, (1 R. S. 791,) that no conveyance, assignment or transfer, nor "any judgment suffered by any such corporation, (moneyed corporation,) when insolvent, or in contemplation of insolvency, with the intent of giving a preference to any particular creditor, over other creditors of the company, shall be valid in law." A friendly creditor of the bank on one and the same day, presented a demand against the bank, instituted a suit upon it, had a trial and judgment, and in effect issued execution, by means of an order to show cause why the bank should not be declared insolvent, upon which no opposition was made by the bank, and it was formally declared insolvent, and a receiver appointed. Held, that the proceeding although it may have been perfectly proper, was substantially a voluntary assignment, made by the bank itself, for the equal benefit of all the creditors, "according to their respective debts." And inasmuch as the assignment or judgment made or suffered, was without an intent of giving preferences, it was a proper and legal act. The selection of one of the officers of the bank as receiver, might have been inju dicious, but it certainly was not unlawful. (See 2 R. S. 467.) Any person having an interest may immediately apply for a change of receiver, and an injunction on his acts. A party in whose favor conditions are prescribed, may waive their enforcement. Therefore, the act of 1849, providing the manner in which the individual liability of stockholders of banks may be enforced, being provisions for the benefit of the bank, may be properly waived by it. Any creditor, having a demand exceeding $100, is authorized to make the application, (under the statute,) and to obtain the order. No notice is required, except to the bank. It seems, that the statute in this respect, (as to giving notice to the creditors,) is clearly defective. New York Special Term. ALLEGED collusive appointment of a receiver. MR. ANTHON, for petition. MR. STOUGHTON, opposed. ROOSEVELT, Justice. The petitioner, Mr. Nicolay, is a cred In the Matter of the Bowery Bank. itor of the Bowery Bank, on a certified check for $1,750, dated October 9th, 1857. He complains, in that character, of what he denominates the collusive appointment of one of the officers of the bank, as a receiver of its assets, to wind up its business, and asks that the orders which were made for that purpose, at the instance of Mr. Moody Cummings, another and a friendly creditor of the bank, may be vacated, and the appointment under them set aside. Mr. Cummings' suit, it appears, was commenced on the 10th of October, on a check for $250, which on that same day, had been protested for non-payment. The order to show cause, was also made on the 10th, and was returnable at 24 o'clock, on the same day; when the counsel of the bank appearing, but making no opposition, the institution was formally declared "insolvent," the injunction against it continued, and a receiver appointed, with directions to realize the assets and "distribute their proceeds among the creditors equally and rateably, according to law." It will thus be seen, that the demand was presented, the suit upon it instituted, the trial had, the judgment rendered, and the execution in effect issued and completed, all on one and the same day. The proceeding, therefore, although it may have been perfectly proper, was substantially a voluntary assignment, made by the bank itself, for the equal benefit of all the creditors, "according to their respective debts." And the question is, is such an assignment by a bank, which, if the petitioner's allegations are well founded, แ was and is solvent, and entirely able to pay its debts," in law a valid proceeding? The statute in relation to moneyed corporations, (1 R. S. 791,) provides, that no conveyance, assignment or transfer, nor any "judgment suffered by any such corporation when insolvent, or in contemplation of insolvency, with the intent of giving a preference to any particular creditor over other creditors of the company, shall be valid in law." Such a provision seems to carry with it, by necessary im plication, an admission that an assignment or judgment made or suffered, without an intent of giving preferences, and of |