
    ALLEN v. CHAMPION AND OTHERS.
    Depositions — notice—evidence in mitigation of damages.
    Notice to take depositions must he 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 admis- . sible in evidence in mitigation of damages.
    Trespass and assault and battery, and injury to personal property. Plea, not guilty — son assault — and entry by tbe landlord to remove goods from his house, etc.
    673] *The plaintiff offered a deposition, tbe 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. 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 had paid 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, &o.r were admissible in mitigation of damages.

Verdict and judgment for plaintiff.  