
    James Fitts v. Willard Whitney.
    
      Deposition. Service.
    
    The only notice which the defendant received of the taking of a deposition offered by the plaintiff on trial, was by a citation signed by the justice who took the deposition, naming the time and place of taking, and served on the defendant by the officer, to whom it was directed, merely by reading. Held, that this was not a sufficient service of the citation, and that the deposition was not admissible.
    
      It seems that the personal notice of the taking of a deposition, which the statute provides may be given to the adverse party by the magistrate taking the deposition, must be given by the magistrate himself, viva voce, in the pres.: ence and hearing of the party to be notified. — Kbdfield, Ch. J.
    
      Case. The only question in this cause related to the admissibility of a deposition offered by the plaintiff, to the admission of which the defendant objected, on the ground that he had not been legally notified of its taking.
    It appeared that the only notice which the defendant received of the taking of the deposition in question was by a citation, which was served on him by an officer merely by reading. This citation was signed by the justice taking the deposition, and the defendant raised no objection to its form or substance, but merely to its mode of service.
    The county court, at the December Term, 1859, — PiERPOiin, J., presiding, — excluded the deposition, to which the plaintiff excepted.
    
      Linsley & Prout, for the plaintiff.
    
      Briggs & Nicholson, for the defendant.
   Redfield, Ch. J.

The only question in the present case is in regard to the sufficiency of the notice of taking a deposition, the citation being served by reading only, and there being no other notice. The statute requires that the party taking a deposition shall “ either cause personal notice tb be given by the magistrate taking such deposition to the adverse party, or a citation signed by a justice to be served on the adverse party, etc., in the same manner as a writ of summons,” etc.

It seems to us these provisions are too specific to admit of giueh latitude of construction. What is meant by giving personal notice by the magistrate to the adverse party is susceptible of some possible variation of interpretation perhaps. Its most obvious and natural signification undoubtedly is, that the notice shall be given by the magistrate viva voce, in the presence and hearing of the adverse party. This is probably, what was intended, and this has probably been the practical construction of the statute, To extend it as far as is claimed in this case, so as to include the reading of a citation in the hearing of the adverse party, would altogether confound the two modes of giving notice, which must be an evident perversion of the statute. We certainly could not give it this extension. And it would he safer probably and more in accordance with the former practice, in regard to this subject, to restrict it to the natural import of the words of the statute, as we have before indicated. But it is not necessary to go that length in the present case perhaps.

In regard to the notice by citation, there does not seem to be any room for doubt. The statute requires, in express terms, that the service shall be in the same manner as writs of summons, and this is by copy only. There was then no legal service of the citation. The reading of the citation in the hearing of the party is no more service of a writ .of summons, that handing it over to. be read by the party, or writing him a letter, stating the sub-, stance, which the party is shown to have received.

In either case there is a kind of knowledge communicated, which would be sufficient for the ordinary purposes of notice, in regard to matters resting wholly in pais, and where the law had prescribed no particular form of notice. But in a case like the present, where a specific form of notice is required, the party is not bound to act upon any thing different. He is justified in staying away, under the expectation that the testimony will not be received.

Judgment affirmed.  