Woods, J.
The statute of December 31, 1828, N. H. Laws 507, sec. 7, provides, “ That if any party proposing to take any deposition, shall neglect or refuse to take the same, after notice given to the adverse party, as aforesaid, such adverse party, in case of actual travel by himself or his attorney to the place and at the time mentioned in such notification, shall be entitled to have and recover in an action on the case, from the party proposing to take such deposition, double the fees which are allowed by law 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 his attorney, that such deposition will not be taken.” ,
The present action is founded upon that statute. The plaintiff was plaintiff in an action formerly brought by himself against Catharine Gould, and the defendant is one who assumed the defence in that case, for the purpose of defeating an attachment which had been made upon some land claimed by himself. The question first presented is, whether the action may be maintained against one who was not party to the record in the action in which the depositions were notified.
[559]*559¥e tbink that the meaning of the statute is sufficiently clear to preclude reasonable doubt. In its terms it renders the party liable to an action, who proposing to take the depositions shall neglect or refuse to take the same after due notice, &c. The statute prescribes the notice to be given to the adverse pai'ty by the party proposing to take the depositions, section 2, who, for any thing which the act contains, may be any person who either prosecutes or defends the action, whether in his own name or in the name of another. The case finds that the defend"anl here assumed the defence of the action of Gould v. Gould, employed counsel, and paid them as well as the witnesses. That he caused the notices to be given, that he proposed to take the depositions, and was the only party to whom could be imputed any neglect or refusal to take the depositions, seem all to be facts directly and clearly to be inferred from his relations to the cause and to the parties. We can entertain no doubt that the defendant in this suit, the efficient party in defending the other, and not the nominal defendant who took no part whatever in conducting the defence, is the one indicated by the terms as well as the reason of the statute, to answer for a default, like the one which is thus pointed out.
2. Another exception was taken to the ruling of the court excluding evidence other than that of the subscribing witness to prove the signature of Catharine Gould to a power-of-attorney, the proof of which became material. The rule of law on this subject was decided in the case of Farnsworth A. Briggs, 6 N. H. 561. When the attesting witness to an instrument can not be produced, witnesses must be called to prove his hand-writing, and it is not sufficient without such proof to prove the hand-writing of the party to the instrument. Upon this point also the ruling of the court of common pleas was correct. The hand-writing of the witness should have been proved.
[560]*560B. The defendant offered to exhibit in evidence a set-off against the claim set up by the plaintiff in this action. The statute authorizes the set-off of mutual debts or demands between the plaintiff and defendant existing at the time of the commencement of the acton. Rev. Statutes, chap. 187, sec. 4.
These debts or demands have always been considered to be liquidated demands, and not claims for damages of uncertain amount. In Howlet v. Strickland, Cowp. 56, it was held, that liquidated damages for the breach of covenants could not be set-off. Lord Mansfield said, “The act of parliament and the reason of the thing relate to mutual debts only. These damages are no debts.”
In Gordon v. Brown, 2 Johns. 150, it was decided, that in an action upon an open policy a set7off was inadmissible. Kent, C. J. says, that “the demand of the plaintiff as well as that of the defendant must be specific aúd certain. There must be mutually, or on each side, a debt, to authorize a set-off'. A promissory note on the part of the defendant can not be set off against a demand of the plaintiff, unless that demand be of such a nature that it could be set off by a defendant if it should exist in him.”
To the same effect is 1 Chitty on Plead., 572. That author also says, “ With respect to the nature of the demands to be set off against another, the statute speaks only of mutual debts; consequently the demand of each party must be in the nature of a debt; so that a set-off is excluded in all actions ex delicto, and even in actions ex contractu, if the claim of either party be for uncertain or unliquidated damages.” 1 Chit. Pl. 572. This reasoning proceeds perhaps upon the phraseology of a statute differing in a small particular from our own. But the reason is the same in both cases. Our statute speaks of demands as well as debts ; but we can not infer that its object has been to enlarge the operation of the laws of set-off. Where there are mutual debts, it is fit that neither party should [561]*561recover more than tbe excess; for such is really all that is due. But an action whose object is to adjust an unliquidated claim for indemnity, or an action for a personal wrong, or for a trespass in which the rights of property may form the principal matter in controversy, ought not to be defeated by the existence of a claim from the opposite side. It is sufficient that when such claims have passed into judgment and have so been made to assume the form of debts, they may become the subject of a set-off. The present action is in form ex delicto. It is for a tort, and does not differ from other actions on the ease, except that the statute furnishes a rule for ascertaining damages.
4. As to the damages. 'When the act of December 1828 was passed, entitling a plaintiff prevailing in an action like the present to double the amount of witnesses fees, the law which regulated these was different from what it afterward became, and the question is, whether the fees then allowed by law, or the fees which were allowed when the cause of action accrued, should furnish the measure of damages to be recovered in the action.
The statute of 1828 in settling the damages to be recovered in the action which it furnishes, referred to the fees allowed to witnesses by the statute of 1820 then in force. N. H. Laws 315. It adopted this statute, which fro hac vice became a part of the act of 1828, and a necessary compliment of it; for without the act of 3820 that of 1828 would have no significance, and would be incomplete. But by a subsequent law the statute of 1820 was altered. This alteration having been made without any qualification, embraces all the purposes for which the act has any operation, and all the subjects to which it extends. It changed the effect of the statute, not only as prescribing the fees of witnesses, but as affording a scale of damages allowed and established by the statute of 1828. In short the statute of 1820 was made a part of the act of 1828 by its terms. This part of the act of 1828 was after[562]*562ward changed; cases arising after the change must of course follow the rule furnished at the time.
The fees of witnesses are changed from time to time.
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Woods, J.
The statute of December 31, 1828, N. H. Laws 507, sec. 7, provides, “ That if any party proposing to take any deposition, shall neglect or refuse to take the same, after notice given to the adverse party, as aforesaid, such adverse party, in case of actual travel by himself or his attorney to the place and at the time mentioned in such notification, shall be entitled to have and recover in an action on the case, from the party proposing to take such deposition, double the fees which are allowed by law 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 his attorney, that such deposition will not be taken.” ,
The present action is founded upon that statute. The plaintiff was plaintiff in an action formerly brought by himself against Catharine Gould, and the defendant is one who assumed the defence in that case, for the purpose of defeating an attachment which had been made upon some land claimed by himself. The question first presented is, whether the action may be maintained against one who was not party to the record in the action in which the depositions were notified.
[559]*559¥e tbink that the meaning of the statute is sufficiently clear to preclude reasonable doubt. In its terms it renders the party liable to an action, who proposing to take the depositions shall neglect or refuse to take the same after due notice, &c. The statute prescribes the notice to be given to the adverse pai'ty by the party proposing to take the depositions, section 2, who, for any thing which the act contains, may be any person who either prosecutes or defends the action, whether in his own name or in the name of another. The case finds that the defend"anl here assumed the defence of the action of Gould v. Gould, employed counsel, and paid them as well as the witnesses. That he caused the notices to be given, that he proposed to take the depositions, and was the only party to whom could be imputed any neglect or refusal to take the depositions, seem all to be facts directly and clearly to be inferred from his relations to the cause and to the parties. We can entertain no doubt that the defendant in this suit, the efficient party in defending the other, and not the nominal defendant who took no part whatever in conducting the defence, is the one indicated by the terms as well as the reason of the statute, to answer for a default, like the one which is thus pointed out.
2. Another exception was taken to the ruling of the court excluding evidence other than that of the subscribing witness to prove the signature of Catharine Gould to a power-of-attorney, the proof of which became material. The rule of law on this subject was decided in the case of Farnsworth A. Briggs, 6 N. H. 561. When the attesting witness to an instrument can not be produced, witnesses must be called to prove his hand-writing, and it is not sufficient without such proof to prove the hand-writing of the party to the instrument. Upon this point also the ruling of the court of common pleas was correct. The hand-writing of the witness should have been proved.
[560]*560B. The defendant offered to exhibit in evidence a set-off against the claim set up by the plaintiff in this action. The statute authorizes the set-off of mutual debts or demands between the plaintiff and defendant existing at the time of the commencement of the acton. Rev. Statutes, chap. 187, sec. 4.
These debts or demands have always been considered to be liquidated demands, and not claims for damages of uncertain amount. In Howlet v. Strickland, Cowp. 56, it was held, that liquidated damages for the breach of covenants could not be set-off. Lord Mansfield said, “The act of parliament and the reason of the thing relate to mutual debts only. These damages are no debts.”
In Gordon v. Brown, 2 Johns. 150, it was decided, that in an action upon an open policy a set7off was inadmissible. Kent, C. J. says, that “the demand of the plaintiff as well as that of the defendant must be specific aúd certain. There must be mutually, or on each side, a debt, to authorize a set-off'. A promissory note on the part of the defendant can not be set off against a demand of the plaintiff, unless that demand be of such a nature that it could be set off by a defendant if it should exist in him.”
To the same effect is 1 Chitty on Plead., 572. That author also says, “ With respect to the nature of the demands to be set off against another, the statute speaks only of mutual debts; consequently the demand of each party must be in the nature of a debt; so that a set-off is excluded in all actions ex delicto, and even in actions ex contractu, if the claim of either party be for uncertain or unliquidated damages.” 1 Chit. Pl. 572. This reasoning proceeds perhaps upon the phraseology of a statute differing in a small particular from our own. But the reason is the same in both cases. Our statute speaks of demands as well as debts ; but we can not infer that its object has been to enlarge the operation of the laws of set-off. Where there are mutual debts, it is fit that neither party should [561]*561recover more than tbe excess; for such is really all that is due. But an action whose object is to adjust an unliquidated claim for indemnity, or an action for a personal wrong, or for a trespass in which the rights of property may form the principal matter in controversy, ought not to be defeated by the existence of a claim from the opposite side. It is sufficient that when such claims have passed into judgment and have so been made to assume the form of debts, they may become the subject of a set-off. The present action is in form ex delicto. It is for a tort, and does not differ from other actions on the ease, except that the statute furnishes a rule for ascertaining damages.
4. As to the damages. 'When the act of December 1828 was passed, entitling a plaintiff prevailing in an action like the present to double the amount of witnesses fees, the law which regulated these was different from what it afterward became, and the question is, whether the fees then allowed by law, or the fees which were allowed when the cause of action accrued, should furnish the measure of damages to be recovered in the action.
The statute of 1828 in settling the damages to be recovered in the action which it furnishes, referred to the fees allowed to witnesses by the statute of 1820 then in force. N. H. Laws 315. It adopted this statute, which fro hac vice became a part of the act of 1828, and a necessary compliment of it; for without the act of 3820 that of 1828 would have no significance, and would be incomplete. But by a subsequent law the statute of 1820 was altered. This alteration having been made without any qualification, embraces all the purposes for which the act has any operation, and all the subjects to which it extends. It changed the effect of the statute, not only as prescribing the fees of witnesses, but as affording a scale of damages allowed and established by the statute of 1828. In short the statute of 1820 was made a part of the act of 1828 by its terms. This part of the act of 1828 was after[562]*562ward changed; cases arising after the change must of course follow the rule furnished at the time.
The fees of witnesses are changed from time to time. The legislature therefore must in adopting such a rule of damages, have intended a shifting rule; otherwise a fixed and determinate one would have been adopted.
But the motion in arrest of judgment must prevail upon the third ground relied upon by the defendant. The declaration does not°allege that the defendant did not give seasonable notice to the plaintiff that the depositions notified would not be taken.
The rule on this subject seems to be correctly laid down by Mr. Chitty (Pleading 222). It is there said, “ In pleading upon statutes, where there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exception; but if there be an exception in a subsequent clause, that is matter of defence, and . the other party must show it to exempt himself from the penalty.”
This doctrine is fully sustained by the opinion delivered by Lord. Mansfield in Spiers v. Parker, 1 T. B. 141, who says, “ It is a settled distinction between a proviso in the description of an offence, and a subsequent exemption from the penalty, under certain circumstances. If the former, the plaintiff must as in actions upon the game iáws, aver a case which brings the defendant within the act; therefore he must negative the exceptions in the enacting. clause, though he throw the burden of proof upon the other side.” To the same point are The King v. Pratten, 6 T. R. 559; Bennett v. Hurd, 3 Johns. 438.
The law is more fully discussed in Teel v. Honda, 4 Johns. 306, in which it is said by. Mr. Justice Van Ness, that “ If the proviso furnishes matter of excuse for the defendant, it need not be negatived in the declaration, but he must plead it. Such is the proviso in the present case. It forms no part of the plaintiff’s title.” He cites [563]*563various casos in which the doctrine has prevailed, and adopts the statement of it contained in Jones v. Axen, 1 Ld. Raymond, 119. “"Where an exception is incorporated in the body of a clause, he who pleads the clause ought also to plead the exception ; but where there is a clause for the benefit of the pleader, and afterward follows a proviso which is against him, he shall plead the clause and leave it to the adversary to show the proviso.”
The same point arose in Hart v. Cleiss, 8 Johns. 41, in which the exception was taken that the exceptions contained in the proviso of the act were not negatived by the declaration. But the court sustained the declaration upon the ground that the plaintiff’s case did not require so much, but that the defendant might protect himself by his plea showing himself to be within the exceptions. Smith v. United States, 1 Gal. 261 is to the same point. Mr. Justice Story says, In general it is sufficient to maintain a suit upon a statute, that the ease is brought within the terms of it.”
To apply the doctrine of these cases to the one under consideration, the plaintiff’s title to recover depends upon proving certain acts and omissions of the defendant. It is not sufficient that the defendant gave notice to take the depositions, and that he omitted upon such notice to take them. lie must have been guilty of the further omission described in the statute; the omission to give timely notice that the depositions would not be taken. Those three things must concur in order to constitute the offence. They are all comprehended in the enacting clause, and no offence is stated if either one of them is omitted. The defendant notified the taking of the depositions; he did not take them and he did not seasonably notify in writing that they would not be taken. Both these negatives are as essential to the offence as one of them is; and the offence would fail to be described by the omission of one, as certainly as by the omission of both.
[564]*564The plaintiff has failed, therefore, to state a title to recover. All that he has stated might have been true as the jury have found it to have been, and yet no right to recover in this action exists. This is a clear case for arresting the judgment. It is not a case of a title defectively stated, which is cured by verdict. It is a case in which no title is stated upon the record, and therefore none can be presumed to have been proved at the trial. The cases of Bartlett v. Crozier, 17 Johns. 489, and of Williams ,v. Hingham Turnpike, 4 Pick. 341, are apposite illustrations of the distinction. The former was a case against an overseer of highways for neglecting his duty. The declaration stated, that the defendant neglected the duties of his office, whereby the damage resulted to the plaintiff. But his duty to repair the highway depended on his being provided with the means ; and the declaration omitted to state that he was so provided; and the omission was held to be fatal. It was nothing to the purpose that this was a negative averment, and might have been set up in defence. The case did not exist against the defendant without this negative. Nor was it a case in which it could be presumed, that all had been proved at the trial that was necessary to charge the defendant. Por nothing that is not substantially stated upon the record, will be presumed after verdict to. have been proved.
The result therefore is that judgment must be corrected, unless the defect be cured by an amendment.
Judgment arrested.