Newbern,
March Term, 1794.
CERTIORARI. At the trial Davie, for the plaintiffs, offered to read a deposition taken in Philadelphia.
Moore, for the defendant,
objected, unless notice could be proved to have been given to the defendant, of the time and place at which the deposition was taken.
Ashe, J. inclined to think the deposition ought not to be read, unless notice was proved.-But
M’Coy, J. said, it had been the constant practice of the superior courts, when a cause from the county courts was tried anew, and a deposition came up with the transcript of the record, to admit it to be read; and to presume due service of the notice and that the deposition had been duly taken, on proof that it had beeen read below.
Whereupon, by the Court. Let proof be made of the reading of this deposition below, and it may be read.
Davie
offered to read a certificate, which the plaintiff had obtained from the district judge of the U. S. Sitgreaves, who, while at the bar, was of counsel for the defendant in this case; stating that the deposition was taken by consent of him and Caswell, counsel for the plaintiffs, and that notice was waved.
But Moore and Martin opposed that evidence, as it was not given on oath.
Davie contended that evidence might be given of an adverse party's declaration-that Sitgreaves being the defendant's counsel, his declaration might be given in evidence, with as much propriety as that of the principal. That if it may, evidence of it in writing ought to be received.
But the Court, Ashe, J. and M,Coy, J. unanimously rejected it.
While the plaintiffs’ counsel was looking round to discover some person, who could prove what was required of him, one of the jurors looking at the deposition recognized on the back of it, some figures which he had made in casting up the interest, at the trial in county court; having been a juror there.
*38 Moore objected then, to that gentleman trying the cause now; as he had already done so once.
On this, the cause was continued; although Davie insisted, very strenuosly, that another juror might be sworn.
At September term following, the plaintiffs had a verdict: but
Martin for the defendant,
moved for a rule to shew cause why a new trial should not be had. Urging 1, that, improper evidence had been suffered to go to the jury, 2, that, excessive damages had been given.
The rule was granted:
And on the last day of the term, Graham for the plaintiffs, moved to have the rule discharged; on the ground that the defendant, on the argument day, ought to, have moved for the rule being made either absolute or enlarged: that having neglected to do so, he ought to be considered as having abandoned his motion.
But Martin and Badger contended that this being the last day of the term, no business on the law docket could be taken up: the law having exclusively set apart the three last days of every term, the dispatch of equity business, 1792, 8, 46.
Graham replied
that the rule must be looked upon as having expired: and
Martin and Badger held that the defendant,
having obtained the rule and served a copy of it, nothing remained to be done by him, until the plaintiffs shewed cause.
That it was the plaintiffs', and not the defendant’s duty to move the court: and cited a number of cases out of Burrows.
Of this opinion was the court, [M’Coy J. alone,] who said, that although it was certainly the duty of the plaintiffs to have applied sooner and on their having neglected to doso, the rule might be made absolute: yet as this cause had long been depending, (it having been commenced nine years ago) he would enlarge rule until next term.
At March term 1795. The rule for a new trial was taken up and the reasons assigned by Martin were:
1. That the declaration contained but the two common counts, for goods &c. sold and delivered at a stated price, and on a quantum valebant: yet an agreement signed by the defendant, that *39interest should be paid after six months from the delivery of the goods, was read to the jury, from the deposition taken in Philadelphia: although that agreement was not declared upon-and it was therefore improperly introduced.
2. That excessive damages had been given: interest having been computed from the delivery of the goods.
The Court,
Ashe, J. and Williams, J.
thought that interest being customarily allowed in Philadelphia in similar cases, it was proper that it should be given in this; even if there had been no agreement to that effect.
They deemed the second objection a proper one.
The plaintiff remitted the interest, during the first six months; and had judgment.