State v. Naud

When the notice to take depositions was served upon the solicitor, no criminal case was pending against the defendant in which depositions could be taken or used, and the justice of the peace acted without authority of law in ordering the caption to proceed. At that time the defendant had simply been bound over to await the action of the grand jury. No indictment had been found against him, and whether one ever would be was a question about which nothing could then be known. Section 13, chapter 225, of the Public Statutes, contemplates the pendency of a criminal action in which depositions are to be taken and used, the same as section 1 contemplates the pendency of a civil action when notice is given under it. Bundy v. Hyde, 50 N.H. 116, 120; Kingsbury v. Smith, 13 N.H. 109; Ela v. Rand,4 N.H. 54. Until the defendant was indicted no criminal case was pending against him (People v. Restell, 3 Hill 289, 294); and as no indictment had been found when the notice was given, the proceeding was void.

Exception overruled.

All concurred.