Eastman v. Coos Bank

1 N.H. 23

• Court: Superior Court of New Hampshire
• Decided: February 15, 1817
• Status: Published

Opinion

Woodbury, J.,

delivered the opinion of the court.

The objections to the verdict in this case resolve themselves into the four following :

1st. That the defendants, being a corporation, the deposition of Stimpson, not having been taken by agreement or under a dedimus, was inadmissible.

2d. That no competent evidence was introduced, to show that the defendants authorized Crane to employ the plaintiff.

3d. That the attorney alone in those suits was liable for the officer’s fees.

4th. That the verdict embraces some inadmissible items of the account annexed, and interest improperly allowed.

The practice, which has prevailed in some counties of this state, would seem to justify the first objection. But no adjudged case in relation to it has been adduced by the counsel, or is remembered by the court; and on principle, we can see nothing in its support. Our statute “ for the taking affi- “ davits

(1) provides that the notification of the hour and “ place of taking the same" shall be delivered to the “• ad- “ verse party, or left at his usual place of abode." From words “ party,” and " his usual place of abode,” it is tended, that the law is applicable to individuals alone, not to corporations ; no member of) the latter being designated, to whom the notice shall be given, and no place appointed, where it may be left. But the corporation itself is an adverse party, in all suits for the purpose of receiving and paying the cost established in the fee-bill ; and in some statutes, also, is embraced under the expression, “ all persons." (1 T'FooiZesow 195.) It is never organized without officers; and a notice delivered to one of them, as, for example, to its president, or cashier, its selectman, clerk, or any one who may happen to act as the representative or agent of the corporation, would be a notice deliveréd to the adverse party. If the corporation have no particular place of doing business, then, like some individuals, it may be said to have no “ usual place of abode,” at which a notice can be left ; and the notice must, as in the case of individuals, be delivered to the person of some agent, or “ left at his usual place of abode.” This is in analogy to the service of writs, where a copy may be "left” at the “ abode” of an officer of the corporation.(2) This construction is also fortified by a currence to the statute for taking affidavits, the first section of which extends its benefits “ to the trial of all civil causes,” making no exception, as would be the practical effect of the defendant’s reasoning in causes where corporations are concerned. The reasons for taking affidavits, that is, the indisposition, distance, See., of witnesses, exist as often where corporations, as where individuals, are parties. And in actions like the present, of an individual opposed to a corporation, where it is admitted the latter could have taken a deposition in the usual manner, it seems reasonable that the same privilege should be enjoyed by the former.

The notification in this case, having been seasonably delivered to the president of the Coos bank, we think the spirit of the statute justifies the admission of the testimony ; and any attempt to evade its spirit by a notice delivered too later or to an improper member of the corporation, or left at an inappropriate place, can be easily detected, and will, in all cases, insure the rejection of the deposition.

The second objection is predicated on the idea, that an express vote of the corporation, or directors of the bank, is, necessary to authorize the cashier to deliver notes for collection, so as to bind the bank for costs incurred upon them. * Formerly, a seal'or solemn vote was required to the validity of almost every corporate act : and suits were seldom sustained against corporations, except on specialities, or statutory provisions. But the doctrine on these subjects has latterly become much less rigid. 12 John. 231, Danforth vs. S. T. Company.-7 Cranch 299, Bank of Columbia vs. Patterson's Administrator.—16 East. 9.

The acts of their agents, within the usual authority of such agents, ought to be obligatory. In this case, the delivery of the notes for collection by the cashier was a customary act for such officers to perform ; and would seem to be strictly within the power commonly entrusted to them in banking institutions. (11 Mass. Rep. 96.) Indeed, this same cashier had before delivered other notes to the same attorney, for the same purposes : and in the progress of those very suits in which the plaintiff performed his services, the corporation itself was notified of their pendency, and received money paid to Crane on these same demands. It is difficult to reconcile all this with the supposition that the notes were left without authority. Indeed, all the circumstances fortify the natural presumption, that an action, com-, menced by a regular responsible attorney, is authorized by the plaintiff. (6 John. 34, 296.)

The third objection presents a question of some novelty ; because the convenience of parties and of sheriffs generally induces the latter to charge their services to the attormes who employ them. But the plaintiff in an action is the p-rin-cipal, and his attorney but an agent. The principal receives the benefit of all the services performed in transacting his business ; and, in addition to this circumstance, his agentcan bind him on any subject within the scope of his authority. Here the defendants alone were profited by the plaintiff’s acts ; and the defendants alone were expressly made liable by Crane, when stipulating on the business entrusted to-him. Cases may exist where the agent only is responsible ; but they are not those in which his authority is general, and the name of the person employing him is disclosed at the time of the transaction. In certain instances the agent or the principal are either of them liable, as the creditor may elect. But that election being once made, he must abide by it. (5 John. 252, 5.-9 do. 114.) That the plaintiff in an action may be originally charged by the sheriff for his services therein, is clearly to be inferred from the case of Ousterhout vs. Day, (9 John. 114,) and is expressly decided in Lyon vs. McManus, 4 Binney 170.

A number of decisions can be found, too, rendering, him responsible for the poundage on executions. (4 Mass. Rep. 411.-2 T. R. 157.-Popham, 173, Waldon vs. Vesey.—10 John. 93.) So, in express terms, was our provincial statute of the 2-9 Geo. 2, c. 123.(1) None of the apprehended need result from this construction. A multiplicity of suits can be obviated by payment, when the services are performed ; or by a special agreement between attornies and sheriffs, to consider the former alone as liable. A compensation made by the principal, or agent, will be a valid defence in a subsequent suit against either.

The fourth objection is well founded in relation to the charge for the schedule of the property attached.

The schedule is merely a portion of the officer’s return ; which return should never constitute a distinct item of expense. The other charges appear to have been reasonable in amount, and for indispensable labor. Such were allowable before our statute of June 23. 1813.(1) 9 John. 328.-12 do. 298.—12 Mass. Rep. 168.

Interest on the money paid and expended is, under the circumstances, perfectly proper. 11 Mass. Rep. 504.

Judgment on the verdict as rendered.

Statute of Feb. 9, 1791, 1 N. H. Laws 113

statute of $ 19,' i’\. nl

Prov.La'vs 629'