
    Stubbs v. Burwell.
    Wednesday, May 18, 1808.
    'Bonds — Assignment oi.- — A bond may be assigned in general terms with a verbal agreement that the assignor shall not be responsible; and, thereupon, he will not. be responsible even to a subsequent assignee having no notice of such agreement.
    Depositions — Appellate Practice. — A deposition having been taken, after the cause was set for hearing in the Superior Court of Chancery, and no objection appearing to have been made in that Court, the Court of Appeals will presume that good cause was shewn for admitting it.
    .Same — Notice of Taking’. -A deposition cannot be read to affect the interests of any party to whom no notice of the time and place of taking it had been given.
    On an appeal from a decree of the Superior Court of Chancery for the Williams-burg' District, whereby an injunction *obtained by the appellee against the appellant was made perpetual.
    Burwell assigned the bond of one Butler to a certain William Harwood, in these words: “I assign the within bond to Mr. William Harwood;” which bond had been previously assigned by one Chapman to Burwell, in the same general terms, no restrictive words having been used. Har-wood being dead, his executors (Pendleton and Courtney) instituted suit on the bond, recovered judgment, and made part of the money by execution, no property being found for the residue. They then brought suit against Burwell on the assignment, and, having obtained judgment, sued out execution, upon which he gave a twelve months’ replevy bond. This bond was assigned by Robert Courtney, executor of Wiliam Courtney, who was surviving executor of Harwood, to the appellant Stubbs. Execution having been issued on the replevy bond, Burwell filed his bill in the late High Court of Chancery, stating that he had been induced, from the unfavorable representations which Harwood had given of the circumstances of Butler to sell him the bond at a great loss, having taken in payment merchandize at an advanced price, and a watch at thirty guineas, which Harwood afterwards acknowledged he had purchased in the West-Indies at thirty-two dollars; and further that he had assigned it, merely to enable Harwood to sue in his own name, it being expressly agreed that he was not to be responsible in the event of the money not being recovered of Butler. He also stated that Harwood’s executors had instituted suit on that bond without requiring bail, and then accepted a confession of judgment at June, with stay of execution till November following. The prayer of the bill was for an injunction, and for general relief.
    The deposition of a single witness (Thomas Buckner) was taken. He proved that Harwood had informed him of his having sold to Burwell in part payment of Butler’s bond, a watch at the price of thirty guineas, which only cost *him twenty-two dollars in the West-indies ; and that he had obtained an assignment of the. bond to enable him to bring suit in his own name, and that Burwell might not be charged with the costs; and that if he never recovered of Butler he should not call on Burwell for it.
    All the answers state that the defendants know nothing of the contract between Bur-well and Harwood. That of Courtney, the representative of Harwood, merely states that he has no interest in the subject, having, under a decree of the Court of Chancery, assigned the replevy bond of Burwell to the appellant Stubbs' without recourse. Stubbs states that he is an innocent as-signee, and paid full value for the bond; and that the defence of Burwell was purely of a legal nature.
    An exhibit was filed shewing a full ad~ ministration of the estate of Harwood, by his executors.
    The Chancellor (admitting Buckner’s deposition to be read against Courtney only, notice of the time and place of taking it not having been given to the other defendants) made the injunction perpetual; from which decree Stubbs appealed to this Court.
    Randolph, for the appellant, contended that the injunction ought to have been dissolved. Striking the testimony of Buckner out of the case, which was neither admissible in law nor in fact, admitted by the Chancellor against Stubbs, there was nothing to support the bill.
    In the assignment from Chapman to Bur-well, there is no restriction as to the responsibility of the assignor; nor is there any in the assignment from Burwell to Harwood. If then Harwood’s representatives recover of Burwell, he can recover of Chapman. The assignment of Burwell was deceptious, if he reserved an agreement not to be responsible, which did not appear on the assignment itself. This negligent act gave the bond a currency, which it would not otherwise have possessed. It was holding out a false credit which induced Stubbs to become the proprietor of the bond; and if a loss is sustained, it ought to fall on Burwell alone.
    Williams, for the appellee.
    The answers of the defendants not denying the equity of the bill, but only-stating that they know nothing of the contract between Burwell and Harwood, there was no ground upon which the Chancellor could have dissolved the injunction. But the deposition of Buckner is decisive of the question, and afforded evidence which justified its being made perpetual.
    Where a bond is assigned, and there is an agreement that the assignor shall not be liable, the contract is valid; as was expressly decided in Crawford v. M’Donald. And though it does not appear upon the assignment in this case, yet it is fully proven by the evidence.
    At a subsequent day of the term, the Court desired that the following points might be spoken to: 1st. Whether it was agreeable to the practice in the High Court of Chancery to issue commissions without consent of parties, to take depositions in a cause after it was. set for hearing: and, 2dly. Whether, where there are several parties, defendants to a suit, and notice be given to one only', another can be affected by the deposition?
    As to the first point, it was stated by Williams that an agreement among the members of the bar had authorised the awarding on commissions to take depositions at any time before the hearing, in order to save the trouble of an application to the Chancellor, who never refused a commission ; that the practice of ' the High Court of Chancery was the same as the rule of the present Superior Court of Chancery ; that, as. this commission issued after the cause was set for hearing, and no exception was taken on that ground, it must be presumed that it was done either by consent of parties, or by special order of the Court; and that no exception could be taken in this Court to the reading of a deposition upon any ground not taken in the Court below.
    With respect to the second point, the act of Assembly only required notice to the adverse party,  But if there be two or more plaintiffs or defendants, it is silent, whether all must have notice or not.
    *On the other side, it was contended! by Randolph that it would not only be contrary to all principle to conclude a party by a deposition who had no opportunity to cross-examine, but was in’ direct opposition to the settled practice,  which expressly requires that notice shall be given to all the parties.
    
      
      Bonds — Assignment of. -See monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Graft. 409.
    
    
      
      Depositions — Notice of Taking. — Although a deposition is regularly taken in the cause as to one party, there having been due notice to him, yet it cannot be received as evidence to affect the interests of .another party to whom no notice has been given. Colvert v. Millstead, 5 Leigh, 101, citing the principal «ase. See monographic note on ''Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
    
      
       Ante.
    
    
      
       See Rule 12, prefixed to v. 1.
    
    
      
      c) See Rev. Code, v. 1, c. 61, p. 67, sect. 46.
    
    
      
      d) Ibid. c. 141, p. 279, sect. 12, 13, 14.
    
    
      
       See Harr. Chan. Pract. 313, last edit.
    
   Thursday, June 2. The Court pronounced the following opinion and decree :

1 ‘The Court of Chancery having admitted the deposition of Thomas Buckner, although the same was taken near two years after the-cause was set for hearing, as evidence against the defendant Courtney' who is the executor of William Courtney, deceased, who was the executor'of W. Harwood, deceased, against whom, were he still living, the complainant Burwell would, in the opinion of this Court, have been entitled to relief against the judgment complained of, and no objection appearing in the record, this Court presumes that good cause was shewn for such admission, as to that defendant ; but the irregularity in taking that deposition made it improper to admit the same in evidence against the defendant Stubbs: an objection of which the Court of Chancery seems to have been apprised; but nevertheless proceeded to render a final decree in the cause, decisive in its operation not only against the defendant Courtney but the defendant Stubbs likewise. From the matter contained in that deposition, if it had been regularly taken, so as .to have been admissible as evidence against all the parties, this Court would have approved of the decree: but not being admissible, nor admitted against the defendant Stubbs, this Court is of opinion that the Court of Chancery ought not to have proceeded to render a final decree in the cause: for if the Court were satisfied that the complainant was entitled ’ to the relief sought, and that from the alleged insolvency of William Har-wood’s estate, the only relief which could be afforded him was *by a perpetual injunction to the judgment obtained against him by the executors of the said William Harwood, the fact of the insolvency of Harwood’s estate ought to have been inquired into; and an opportunity ought also to have been afforded the plaintiff to take the deposition of Thomas Buckner de novo, giving due notice thereof to the defendant Stubbs, that he might not be concluded by the evidence of a witness whom he had no opportunity to cross-examine. Upon these grounds this Court doth decree and order that so much of the decree aforesaid as perpetuates the injunction awarded the complainant to stay all further proceedings on the replevy bond in the bill mentioned in behalf of the said Harwood’s representatives, be affirmed; and that the said decree be reversed so far as it -relates to the defendant Stubbs, and that the appellee pay to the appellant his costs, &c.

“And the cause is remanded to the said 'Superior Court of Chancery for such further proceeding's therein to be had, in respect to the defendant Stubbs, as may enable •that Court to render a final decree as to him, according to the principles of equity. And with this further direction, that if, upon the coming in of that deposition, (or in the event of the want of it, by reason of the death of the witness or otherwise,) the said Court of Chancery should be of opinion that the complainant’s equity, as against Stubbs, is not sustained according to the principles, which, under the ■opinion of this Court, go to sustain it •against the representatives of Harwood; that then and in that case the said Court shall institute and set on foot such proceedings, tending to inquire into the solvency of the said Harwood, as the said Court may think conducive to justice, if desired by the complainant; and also institute an inquiry as to the real value of the consideration paid by Harwood, for the bond aforesaid; which sum, with interest, shall limit the amount of the sum, for which the said complainant shall be, in that event, considered liable.”  