Opinion
April Term 1818.
Notice to take depositions may be left at the residence of the party where he is in the neighborhood, or in the house and conceals himself, but must be personally served if he be in a distant part of the State. If in another State, the service must be on his attorney, and, also, by leaving notice at his place of residence. (See, now, Code, 3850, 3854, 3855; 1860, 53; 3 Cold., 51.)
In Error. —
The error assigned is in the rejection, by the judge of the Circuit Court, of a deposition the notice of the taking of which had been left at the house of the adverse party.
We now decide as follows: That if notice be left at the residence of the party to be notified. and he be in the house and conceal himself; or if he be in the neighborhood. — it will be a sufficient service of the notice. But if will be otherwise if he be in a distant part of the State, or in another State. In the latter case, service must be on his attorney, and by leaving a notice at his place of residence also. If in the State, he must be personally served.
And the affidavit, to prove notice, must state his concealment, or being in the neighborhood at the time of leaving a copy of the notice at the place of his residence. And it must state his being out of the State when proof is made of notice served on his attorney, and of leaving a copy at the house of the principal. Judgment accordingly.