First National Bank of Plattsburg v. Post

The opinion of the court was delivered by ROSS, Ch. J. The deposition of Alfred G. Safford was admitted against the exception of the plaintiff, on the objection that it was within the rule of the court, “No deposition taken ex Jarte without the State shall be used on the trial of any case unless taken at least fifteen days prior to the first day of the term for which it was taken to be used.” The deposition was taken out of the State, without the appearance of the plaintiff, only eleven days prior, to the first dajr of the term for which it was taken to be used. The rule is a rule of the trial court, and might have been waived by that court in its discretion, and the deposition admitted notwithstanding this objection. The court did not exercise its discretion in this respect, but held that inasmuch as the [227] ■plaintiff was lawfully notified of the taking of the deposition, it was not a deposition taken ex parte within the rule. This was error. R. L. 1,028 requires that depositions taken without notice to the adverse party shall be filed with the clerk of the court at least twenty days prior to the first day of the term for which they were taken to be used, to render them legally admissible. It is not to be presumed that the court undertook by a rule to repeal or override a positive statute. Hence the rule could not have been intended to apply to depositions taken ex parte, because taken without notice to the adverse party. It must have application to depositions taken with notice, but without the presence of the adverse party. This gives the proper meaning to ex ■parte. R. L. 1,027 provides that such depositions, or depositions taken on notice, may be taken at a reasonable time after notice. This requires the court, in any instance, to pass upon what is a reasonable time. It leaves uncertain what the trial court may hold to be a reasonable time, under the circumstances attending the taking of every deposition. To obviate this necessity and to remove the uncertainty, so far as possible, in regard • to depositions taken without the State, and near to the term at which they are to be used, the rule was adopted. II. The county court held that the plaintiff could not recover on the recognizances declared on, because they were taken in suits against the plaintiff in which the court obtained no jurisdiction of the plaintiff. The court to which the suits were returnable, in which the recognizances were taken, had jurisdiction of the subject matter of the suits. But the suits were brought against the plaintiff, a non-resident in this State, by attaching a debt due to it in this State. This was the only service upon the plaintiff. This service is prohibited by the act of Congress under which national banks are organized. Safford v. National Bank of Plattsburg and Trustee, 61 Vt. 373. Hence it is contended that the court [228] had no jurisdiction to take the recognizances, that they were not enforceable against the defendant, and that the plaintiff’s only remedy for the costs recovered in those suits is against Safford, the plaintiff therein. The county court held in accordance with this contention. This was also error. R. L. 847 requires the taking of recognizances, and R. L. 1,170 authorizes the rendition of judgments for costs, as was done in favor of the plaintiff, although the court acquired no jurisdiction. The recognizances were taken to secure to the plaintiff — the defendant in those suits — the payment of any judgments in its favor which might be rendered for costs. The court had jurisdiction both to take recognizances and to render the judgments for costs; and the recognizances were valid and enforceable against the defendant. Such was the holding in Colony v. Maeck, 8 Vt. 114. State Treasurer v. Wells, 27 Vt. 276, relied upon by the defendant, is not in point. The recognizance in that suit was not such as the court had authority to take, under the circumstances of that case. III. The plaintiff came into this State, and brought this suit to enforce these recognizances. By this act it submitted itself to the jurisdiction of the court, and gave it jurisdiction to award the defendant the right to declare against it in set-off. The claim of the defendant was of such a nature that assumpsit could be maintained upon it. It rested upon the promise of the plaintiff to pay to the defendant the claim of Safford against it. Safford’s claim would, sued in his name, have supported either book account or assumpsit. The un-contradicted testimony of the defendant, admitted, showed a novation of this claim. It showed an assignment of it by Safford to the defendant. This was relinquishment of the claim to the defendant by Safford. When the plaintiff was duly notified of the relinquishment, it was legally bound to pay the claim of the defendant. It could no longer legally pay it to Safford. But while standing in this condition the [229] defendant could enforce it only in the name of Safford. But when the plaintiff on being notified of the assignment promised to pay the claim, whatever it might be, to the defendant, it thereby became liable to him only. The assignment, with due notice thereof, and the promise, left it a claim existing between the plaintiff and defendant. The assignment made the- defendant the owner of the claim between him and Saf-ford. Due notice of it to the plaintiff made it such between the defendant and the plaintiff. The plaintiff’s promise to pay the claim to the defendant, upon being duly notified of the assignment, completed the substitution between the three, of the defendant in the place of Safford, as the owner, and as the party entitled to enforce the claim. The promise was only between the plaintiff and defendant. It is contended that the assignment was -to the defendant in trust. It was in part. But the defendant was the absolute owner of the claim to the extent of the payment of his debt against Safford, and for his services and expenses. The amount of the defendant’s personal interest in the claim assigned is not stated, but it is evidently greater than the amount due the plaintiff on the recognizances. To this extent, at least, the court could allow the defendant to offset the amount recoverable in set-off. Whether, therefore, he could be allowed to set off that portion of the claim which he held in tfust for Mooney need not be considered. The plaintiff’s contention that the assignment was void because the whole claim was not assigned for the same purpose cannot be sustained. The whole claim was assigned to the defendant. There was no division of the claim in the assignment. That the defendant had part of the claim and might hold part of the sum recovered in trust for Mooney did not make the assignment double, or one to the defendant and another to Mooney. The authorities cited by the plaintiff on this point are not applicable. Nor was the court in error in allowing the defendant to testify that the first assignment in writing was modified by [230] provisions resting, in part, in parole. The defendant took no action under and gave no notice of the written assignment, nor did the plaintiff’s promise relate to that assignment, but to the whole assignment, both written and parole. The plaintiff also contends that the promise to pay the Saf-ford claim' to the defendant was not binding, because made by the president of the plaintiff. Whether the president of a bank, by virtue of his office, has power to bind the bank by a promise not authorized by ’the directors need not be considered. After the assignment and notice the plaintiff could legally pay the claim to no other person than the defendant. Its promise was only needed to enable the defendant to enforce the claim in his own name. From the deposition of Safford, if it had been legally admissible, the settlement of the claim appears to have been entrusted by the plaintiff to its president. If this wás so, we think he would have implied authority, at least, to bind the plaintiff to pay whatever might be found due on the claim to the defendant. Such promise would be within the scope of authority to settle the Safford claim. But inasmuch as the deposition of Safford was improperly admitted, the case must go back for another trial, in which the authority of the president can be investigated.' "Judgment reversed and cause remanded.