Robertson v. N. R. R.

• Decision Date: 12 March 1886
• Citation: 3 A. 621,63 N.H. 544
• Parties: ROBERTSON and another v. NORTHERN R. R. and another.
• Court: New Hampshire Supreme Court

3 A. 621

63 N.H. 544

ROBERTSON and another

v. NORTHERN R. R. and another.¹

SUPREME COURT OF NEW HAMPSHIRE.

Filed March 12, 1886.

Case to recover costs under section 10, c. 229, Gen. Laws.

On due notice to the plaintiffs by the defendants, in a suit in equity now pending between them, the plaintiffs' attorney went from Concord, New Hampshire, to London, England, to attend the taking of a deposition by the defendants on August 10, 1885; but the defendants omitted and neglected to take it, because the witness did not attend, but without their fault. The plaintiffs claim 25 cents a mile, under said statute, for the actual travel of their attorney to attend the caption, while the defendants claim they are only entitled to the actual sum they were compelled to pay out, not exceeding 25 cents a mile for actual travel.

Bingham & Mitchell, for plaintiffs.

W. L. Foster, for defendants.

ALLEN, J. "If any party, after giving notice to the adverse party, as aforesaid, neglects or refuses to take a deposition, such adverse party may recover twenty-five cents a mile for actual travel of himself or his attorney to attend the same, by action on the case, unless seasonably notified in writing, signed by the party giving such notice, that such deposition will not be taken." Gen. Laws, c. 229, § 10. The defendant claims that, upon a fair interpretation of this statute, the plaintiff can only recover his necessary expenses, not exceeding 25 cents a mile for actual travel in attending at the place notified for the caption of the deposition. The interpretation of the statute is the ascertainment of the legislative intention, and that intention is found by the natural weight of competent evidence. Evidence of an intention that the suffering party should recover the whole sum indicated in the statute is found in the fact that language is used similar to that frequently used in other statutes for the recovery of a definite sum as liquidated damages. The money expended by one town, in the support of a poor person chargeable to another town, "may be recovered" of the town chargeable. Gen. Laws, c. 82, § 10. The person to whom damages are awarded for land taken for a highway "may recover the same, with interest." Chapter 70, § 7. Any person compelled to pay damages for the escape of a prisoner "may recover the same," etc. Chapter 220, § 7. "All penalties and forfeitures may be recovered by action of debt," etc. Chapter 266, § 1. These are instances of the use of the permissive phrase "may recover" in statutes, where a sum named or one to be found by computation from given data is always the measure of the recovery.

The act of December 3, 1828, § 7, (Laws N. H. 1830, p. 507,) provided for the recovery of "double the fees which are allowed by law to witnesses for their travel and attendance at court in the trial of civil causes," and the language giving the remedy is, "shall be entitled to have and recover in an action on the case." Under this statute it does not appear to have been questioned that the recovery, when had, should be the double witness fees named. Wilson v. Knox, 12 N. H. 347; Gould v. Kelley, 16 N. H. 551. By the Revised Statutes, c. 188, § 22,' the adverse party to whom notice was given, was entitled to recover, of the party neglecting to take the deposition, 25 cents a mile for actual travel of himself or attorney to attend the caption. Under that law the decisions have been that the aggrieved party was entitled to recover according to the rate fixed in the statute. Powers v. Hale, 25 N. H. 145, 154; Voght v. Ticknor, 47 N. H. 543. Since the adoption of the Revised Statutes the only change made in the law was in the enactment of the General Statutes of 1867, (Gen. St. c. 210, § 10,) where the words "may recover," now in the statute, were substituted for the words "shall be entitled to recover." In making this change, the commissioners of revision have not indicated, by sign or abbreviation upon the margin of this report, that any change, verbal, material, or sensible, was...