Ellis v. Lull

45 N.H. 419 | N.H. | 1864

Nesmith, J.

Under the 20th rule of court, the depositions taken in this case could not be used in the trial of the action before the jury. Under that rule, they would be regarded as having been taken out of time. But the case finds that they were to be used before an auditor. We do not understand that the prohibition of this rule extends to depositions to be used before auditors or referees. The rule may properly be construed strictly, as being in derogation of the general provisions of the statute, permitting depositions to be used in the trial of civil cases, and, therefore, not to be extended beyond the fair interpretation of the language there employed. The language of the rule embraces jury trials alone : — "No deposition, which has been taken after the Tuesday next preceding the Tuesday, on which the term commences, shall he used in the trial of any cause before a jury.” Hence, the rule does not seem to prevent the use of depositions taken to be used before auditors, and other similar tribunals, if competent in all other respects, more especially as it is in the power of such tribunals to give necessary opportunities for cross-examination.

Objection is made, that the notice for taking these depositions was served on H. Lull alone, and not upon the other co-defendant. The sufficient answer to this objection is found in the explicit and plain language of the 15th section of chap. 200, Comp. Laws, page 486. The section prescribes, "that the party proposing to take such deposition shall cause á notice in writing signed by a justice, &c., to be delivered to the adverse party, or one of them, or left at his usual place of abode,” &g. It seems to be in the power of the party serving the notice to elect but one of the adverse party; and, of course, he would be inclined to select that one upon whom to make the service of the notice, that would enable him most perfectly, or conveniently, to comply with the terms of the statute. It would be both the interest and duty of the plaintiff to serve the notice upon that defendant, whereby the service might be made legal. Hence, H. Lull, who resided nearer to Boston (the place of caption,) than his co-defendant, is properly selected as the appropriate individual upon whom to make the service in this instance. The plaintiff, by the service on H. Lull, has thus secured a good service of his notice, and given to the defendants an opportunity to cross-examine Ms witnesses; and if the defendants have not availed themselves of this privilege it is their own fault. Generally, the shortest route of public travel to a given point is regarded as the just and legal route both in making the service of legal notices, and in giving compensation therefor. Therefore, the Franconia route, in estimating the true distance from Boston to Columbia, may have been properly selected. That railway facilities may have enabled the party to have reached the place of caption in this case upon some longer route, though in a shorter time, does not furnish grounds for complaint, or objections to the legality of the notice here given. Scammon v. Scammon, 33 N. H. 60.

Our statute upon that subject follows the general rule at common law: "That where two or more persons are subject to a joint duty or obligation upon notice, and where other special notice is not made necessary by statute, or by contract, a notice addressed to all, and served on one is notice to all.” Knight v. Fifield & al., 7 Cushing, 264; Morse v. Aldrich & als., 1 Metcalf, 544, and cases thére cited.

We think the depositions should be used, and the case be discharged.