Opinion
December Term, 1849.
1. Where a plaintiff charged a defendant, as his agent, with having received the hires of negroes, subsequent to November, 1840, and the defendant offered to prove that another person, as his agent, had received the hires prior to November, 1840: Held, that this evidence was irrelevant and properly rejected.
2. A deposition of a witness was taken on 28 December, 1847, on a notice served on the 26th of that month, under the act requiring three days' notice to be given, the party opposing the deposition appearing at the time of taking it and objecting to the length of notice, and declining to cross-examine: Held, that the deposition should be rejected.
3. One day, in such cases, is to be counted inclusive and the other exclusive.
APPEAL from the Superior Court of Law of GRANVILLE, at June Special Term, 1849, Settle, J., presiding.
This was assumpsit for the hire of a negro from November, 1840, to March, 1843, during which time, and for some years before, the negro had been in the State of Mississippi under the control and management (as the plaintiff alleged) of the defendant.
The plaintiff admitted that he had received the hire of the negro for the time prior to November, 1840; and, as evidence to charge the defendant, among other things, offered a letter of his, in which he uses these words: "Those negroes have always been under my control and management, since they reached Mississippi." The letter is dated March, 1843.
The defendant alleged that in the fall of 1841 his agency for the plaintiff ended, and one John A. Downey, a son of the defendant, then became the plaintiff's agent; and the defense was that from that time the plaintiff's cause of action, if he had one, was against the said John A. Downey, and not (285) against the defendant.
To show this, and to explain the general admission above quoted, the defendant examined John A. Downey.
For the same purpose he called Captain Beasley, a brother of the plaintiff, and offered to prove that, during part of the time the negro was in Mississippi, but prior to November, 1840, the witness had acted as the plaintiff's agent. Upon the statement of the witness, that he had acted under a letter of attorney, which was not produced, the question was withdrawn; and the defendant offered to prove by him that he had received the hire of the negro for a part of the time prior to November, 1840, and accounted for it to the plaintiff. His Honor rejected the evidence, as it did not relate to the hire for which this suit was brought, and the defendant excepted.
The defendant also offered the deposition of one Barnett, which had been taken, as the witness was about to remove from the State. The deposition was taken on the 28th, and the notice was served on 26 December, 1847. The removal and absence of the witness were proven, and it was also proven that the plaintiff was present at the time and place of taking the deposition, protested against it for the insufficiency of notice, and asked no questions. His Honor rejected the deposition, and the defendant excepted.
T. B. Venable, McRae, Miller and E. G. Reade for plaintiff.
Graham, Gilliam and Lanier for defendant.
We concur with his Honor as to both of the matters excepted to.
The fact that Captain Beasley had received the hire for a part of the time, prior to November, 1840, and accounted for it to the plaintiff, had no bearing upon the issue. It was irrelevant and properly rejected. It is the duty of the (286) court to protect juries from such evidence, because it is apt to mislead, and in all cases renders the investigation of facts unnecessarily tedious and embarrassing.
It is very ingeniously argued for the defendant that, although this evidence had no direct bearing upon the issue, it had a tendency to explain the general admission of the defendant, which was relied on by the plaintiff, that it was too broad as to the time prior to November, 1840; and thus furnishing ground for an inference that it was also too broad as to the time subsequent to that date. If the fact that an admission is too broad as to the time not sued for, furnishes any ground for the inference that it is also too broad as to the time which is sued for, it is very remote and attenuated — too much so for any practical purpose.
The deposition was properly rejected. The law requires three days' notice, not merely to enable the party to get to the place, but to prepare himself, by examining his papers, deciding upon the proper mode of cross-examination, and consulting his counsel, if need be; hence, the proper notice must be given, unless it is waived, either expressly or impliedly. If a party be present and makes no objection, but allows the deposition to be taken, and, particularly, if he shows his concurrence by a cross-examination, a waiver of notice is implied. But in this case the plaintiff expressly objected, and did not cross-examine, and the idea of implying a waiver of notice under such circumstances is absurd.
As to the mode of counting the days, the proper rule is to count one day inclusive and the other exclusive. Here, there was one whole day and a part of two other days. If the day on which the notice was given be included, the day on which the deposition is taken should be excluded. This makes the notice short enough; and a good deal might be urged in (287) favor of requiring three whole days; but we adopt the rule, allowing one day inclusive and the other exclusive, for the sake of having one fixed and uniform rule. It is believed that this is the rule adopted as to the time of executing and returning writs, and in other matters of practice.
PER CURIAM. Judgment affirmed.
Cited: Irons v. Cook, 33 N.C. 206; Holmesly v. Hogue, 47 N.C. 393; Sparrow v. Blount, 90 N.C. 517.