Wilson v. Knox

| Superior Court of New Hampshire | Dec 15, 1841

Upham, J.

Motion has been made to dismiss this action, on the ground that it does not survive to the administrator. Cases of torts, and actions ex delicto, and for injuries to the person, do not, by the common law, as a general rule, survive. 1 Saund. 217, n. 1; 1 Chitty’s Pleading 57; 3 Blac. Com. 302; 3 Mass. 321, Pitts vs. Hale; 13 Ditto 454, Cravath vs. Plimpton; 5 Pick. R. 285, Jones vs. Knox; 9 Wend. 29, People vs. Gibbs. This suit is for neither of these causes. It is to recover expenses incurred for travel and attendance on a caption of depositions, agreeably to notice given. This expense the statute compels the party notifying to pay, provided no caption is had. It is not a suit prosecuted as a penalty, or as a punishment for neglect, but to recover specific compensation for expenditures occasioned by acts of the defendant, for which he incurred a conditional liability of payment.

These expenses came out of the plaintiff’s estate. It was by so much diminished, and made less beneficial to the administrator. They should have been refunded to the deceased by the plaintiff; and why should they not be refunded to the estate ? So far as the substance of things is concerned, there can be no reason to the contrary. The name of the action prescribed by the statute to effect this remuneration cannot make any difference, provided it is for expenses incurred, and not as a penalty. On these grounds we hold that the action survives.

We are then to inquire whether, on the facts submitted, the action can be maintained.

One exception taken is, that no sufficient notice for the caption of depositions was given. The husband was notified, and not the husband and wife, in a suit where they were joined. It is not necessary to determine whether the husband might not be considered a competent agent to receive notice in such case. As the defendant chose to give such notice, and it was acted upon, we regard it as not open to exception for this cause, and that the notice is sufficient for all purposes of this suit.

The claim of the plaintiff to recover, under this notice, is founded upon the provision in the act relative to the taking of depositions. By that act it is provided, that “ if any party, proposing to take any deposition, shall neglect or refuse to take the same, after notice given to the adverse party, in case of actual travel by himself or his attorney to the place, and at the time mentioned in the notification, he shall be entitled to have and recover, in an action of the case, from the party proposing to take such deposition, double the fees which are by law allowed to witnesses for their travel and attendance at court in the trial of civil causes, unless seasonably notified in writing, signed by the party proposing to take such deposition,or by his attorney, that such deposition will not be taken.”

The statute was designed to give an adequate and sufficient remuneration for expenses incurred in case of an attendance, agreeably to notice, on a proposed'caption of depositions, where no depositions were taken. The arrangements for such caption all rest with the party notifying. It is his duty to see that the magistrate and witnesses are seasonably in attendance, and that the caption proceed.

At the same time, the statute did not contemplate a compensation for travel, for any other purpose than actual attendance on the taking of depositions. If there is evidence to show that the travel of the defendant was merely to extort payment of his expenses, it is not in fact a travel to attend the caption of depositions.

To make out a case of this kind, however, it should be shown that the travel was under circumstances when it was fully known that the depositions neither could nor would be taken, and that the sole motive of the attendance was the extortion of money. Evidence was offered in this case of the declarations of the plaintiff, “ that he had been to Baltimore, and got back; that he should not have gone, but he knew it would come out of the defendant, and that he should get a good suing’ This evidence tends to show that the travel may not have been such as was contemplated by the statute. Whether it was so or not, is a question for the jury to determine. The evidence on this point should have been submitted to them on trial; and, to determine this question, the verdict must be set aside, and a

New trial granted.