
    *317] *Nathan T. Arnold vs. Benjamin Renshaw, Executor of William Renshaw, deceased.
    
    A notice of taking a deposition, under the fifth section of the statute, (Rev. Laws, 438), must be served on the party, and not on the attorney in the cause.
    
      Seudder, for plaintiff in error,
    cited Lev. Laws 422, 423, 438, 439; 5 Halst. 340•; Den v. Gerger, 4 Salst. 225.
    
      Wall, for defendant in error,
    cited Clark’s Law, see. 19; Middleton v. Taylor, Coxe 445.
    
      
       Note. — See “An act to regulate the practice of courts of law,” Rev. Appr. March 27,1874, sec. 217, (Rev. Stat. pape 642), directing all notices to be served upon the attorney when party appears by attorney, unless otherwise specially provided for.
    
   The Chief Justice delivered the opinion of the court.

The Court of Common Pleas refused to receive in evidence a deposition of a witness about to go out of the state, taken, on the part of the plaintiff, under the 5th section of the act, (Rev. Raws 438) because the notice of taking the deposition was served, not on the defendant, but on his attorney, neither of whom attended *the examination of the witness. [*318 The rejection, of this deposition is shewn by a bill of exceptions, and is assigned for error.

The act requires the notice to be given to “ the adverse party.” A notice to the attorney is, therefore, in my opinion, insufficient,

1st. Because of the natural import of the words “ the adverse party.”

2d. Because in the same act, the term party,” is used with manifest reference to the principal, and not the attorney. Thus, in the first section, interrogatories are to be signed by “ the parties or their counsel in the cause.” In the second section, the commissioner is authorized to deliver the commission and examination “ to the agent or attorney of the party in whose behalf the witness is examined.” In the seventh section, “ either party in the said action or suit may at his or her costs and charges, take copies.” And in the tenth section, “ the party requiring such examination shall be at the sole expense thereof.”

3d. Because in various other places a distinction is maintained between the party and the attorney. Thus, in the practice act, sections 30, 31, 32, 54, 55, 56, the terms are, “ the plaintiff or his attorney,” and “ the defendant or his attorneyand in section 56, the party, whether plaintiff or defendant.”

4th. Because the term “ the adverse party,” in the previous act for taking the depositions of witnesses, had been settled to require a service on the principal, and not on the attorney. Middleton v. Taylor, Coxe 445.

5th. Because the convenience of suitors will be best promoted by service of the notice on the party, rather than the attorney. And if some inconvenience, by requiring such .service, may be found where the party resides out of the state, the wisdom of the legislature may readily remove it.

Upon the whole, I am of opinion the Court of Common Pleas gave a sound construction to the act, and properly rejected the deposition.

Let the judgment be affirmed.  