65 Vt. 222 | Vt. | 1892
The opinion of the court was delivered by
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
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
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
Nor was the court in error in allowing the defendant to testify that the first assignment in writing was modified by
"Judgment reversed and cause remanded.