Scammon v. Scammon , 33 N.H. 52 ( 1856 )

Bell, J.

The written admission of the plaintiff was competent evidence of all that could be justly inferred from it. Upon the common principle that an admission, made for the purpose of preventing other evidence from being resorted to, should, in case of doubt or ambiguity, be construed most strongly against the party making it, the jury were at liberty, if the language was equivocal, to judge of it under the light of all the surrounding circumstances, and to draw such inferences from it as were calculated to give it a reasonable effect and operation, ut res magis valeat quam pereat. This writing is ambiguous in several particulars. It is not said in what trial nor in what court the admission is to be used, and nothing is said, whether the debts admitted were on interest or not. The jury might look at the purpose for which this writing was given; that a trial of this case was then in anticipation, and that the question to be tried was, whether the plaintiff had debts due to him, bearing interest, which he had not given in his invoice, and that no other debts were of any importance; and they would be fully justified in drawing the inference that the trial referred to was the trial of this cause, and that the debts intended were debts material in that case ; that is, debts bearing interest, just as they might understand the admission to apply to the whole years, 1849 and 1850, though its literal construction might be satisfied if it was true in any part of those years. The instruction of the court on this point seems to us correct.

The proof as to the property of the plaintiff’s wife, derived from her father’s estate, and the proof of the purchase of a large amount of property from her mother, for which he is only conditionally liable to pay any thing, as shown by his obligation, recited in the case, had a direct tendency to show large means, and though not direct proof of money at interest, it had a tendeucy to confirm the inference arising from the admission, and a similar tendency to disprove the existence of debts due from the plaintiff to others.

The evidence relating to the note of James Scammon was admissible to show that the plaintiff’s note was paid. It was equivalent to an admission by James Scammon that the plaintiff did not owe him any thing, 'which would be clearly competent evidence for the plaintiff, to resist the supposed note, and for that reason would be competent for others to disprove the debt. The statements of the parties themselves, as to the dealings between them, are evidence against themselves, and to that extent in favor of others.

Proper search was shown to be made for the warrants of the State and County treasurer, for assessing the State and County taxes, and it was shown none could be found. Parol evidence showed that such warrants were in fact received by the selectmen, and it was competent to prove the contents of them by parol. The evidence on this subject went no further than that they were warrants for the State and County taxes for that year; and it was conceded that the taxes were in fact made for the just proportions of the town of those taxes; and we think that from these facts the jury were fully justified in drawing the conclusion that the warrants were for the just amounts to be assessed on the town, according to the law then in force ; and the instructions of the court on this point were correct.

It is contended that the notice of taking depositions at Boston was insufficient. The 20th general rule prescribes that “ no notice to the adverse party of the taking of depositions shall be deemed sufficient, unless served three days, exclusive of the day of service and the day of caption, before the day on which they are taken. In computing the time of service of the notice, the Sabbath is to be excluded, whenever the notice is served less than seven days prior to the day of the caption. And when the adverse party shall live more than ten miles from the place of caption, one day more shall be allowed for every additional twenty miles; provided, however, that twenty days shall be deemed sufficient in all cases.” It is conceded, that if an additional day is required for a fractional part of twenty miles, the notice was insufficient. The impressions of the bar vary as to this question, and it has never been decided.

In taxing costs, the practice has been to allow for fractions of ten miles, and the practice is similar in the case of the members of legislative bodies. And the practice- has been too long settled to be disturbed. But there is a difference of phrase, which seems designed, and may well lead to a different construction in this case. It is not said every twenty miles, as if twenty miles was a unit admitting no fractions, but it is, every additional twenty miles ; the natural import of which is, that no additional day is to be required, unless twenty miles in full are added. And we are of the opinion that this is the true construction to be adopted.

The practice as to taking depositions on successive days is governed by no rule of court. It is a question of reasonable notice, and reasonable opportunity to be present. This is not to be judged of at this day by mere distances, as would formerly have been the ease. The facilities of traveling must now be regarded ; and as the modes of communication are stated in the case, we cannot say that there would necessarily be any difficulty in a party attending the taking of a deposition at Boston on one day, and at Exeter on the next. Probably two hours in time may be regarded as the distance practically between those places. If there was a well founded objection to the notices on this account, we think that objection applies to the second day, and not to the first. Eor the first day the notice was ample, and there was no reason the party should not attend. If, in consequence of the time occupied in taking the depositions at Boston, or the lateness of the hour at which the taking was closed, there was any practical difficulty in attending at Exeter, that would be a good reason for objecting to the depositions taken there. But the objections to the deposition taken at Boston must be overruled.

Judgment on the verdict.