
    ALLEN v. CHAMPION AND OTHERS.
    Depositions — notice—evidence in mitigation of damages.
    Notice to take depositions must be given at least one entire day before the depositions are taken.
    In a suit for trespass, etc. by a landlord, for the non payment of rent, notice to quit, and other circumstances attending the act complained of, are admissible in evidence in mitigation of damages.
    < Trespass and assault and battery, and injury to personal property. Plea, not guilty — son assault — and entry by the landlord to remove goods from his house, etc.
    
      The plaintiff offered a deposition, the notice for which was served at 8, A. M. to take it at 8, P. M. on the same day. This was objected to.
    
      Conger, for the plaintiff,
    objected.
    Card,
    in reply, cited 4 John. R. 130.
   Lane, J.

The law knows no fractions of days, and notwithstanding the phraseology of the statute, it is necessary to give at least a day’s notice. The deposition must be rejected.

It having been proven that the plaintiff was a tenant of a house of the defendant Champion, and that he had given permission to the other defendants to enter and occupy as his tenants, if they could do so peaceably, a witness was asked by the defendant if the plaintiff hadpaid his rent.

Lane, J.

thought the evidence inadmissible.

Wright and Wood, J.

thought the circumstances attending the entry, such as the non payment of rent, notice to quit, etc. were admissible in mitigation of damage?.

Verdict and judgment for plaintiff.  