Cater v. McDaniel

21 N.H. 231

• Court: Superior Court of New Hampshire
• Decided: July 15, 1850
• Status: Published

Opinion

Bell, J.

The first and last of the objections to this deposition might be readily obviated by an amendment of the certificate. But the objection, founded upon the want of a written notice, seems to the Court fatal to the evidence. The Bev. Stat. ch. 188, § 15, p. 380, distinctly require “ a notice in writing,” “ stating the day,hour, and place of taking” the deposition, “ to be delivered to the adverse party,” &c., “ a reasonable time before the taking.” The practice of taking depositions in New Hampshire has always been governed by the statutes on that subject from the first organization of the courts, and the courts have no authority to dispense with any of the requirements off the statute.

In ordinary cases, the court regard the appearance of the party as a waiver of any objection on account of the want of due notice ; but in this case, no inference of a waiver can properly be drawn, since the deposition was taken under an order of court, and the appearance cannot therefore be regarded as voluntary.

Mto trial granted.