— It was sufficient for the plaintiff below, to alledge in his declaration, that he was in possession of the premises sued] for, at the time of the entry of the defendant, and this we think, is substantially alledged. No inference can reasonably be made, that between the first and the second of January, he abandoned, or lost the possession, and the allegation is therefore sufficiently certain.
The right to take the depositions of witnesses, must be exer.cised in strict conformity with the statute. The act requires that “ the party praying such commission, shall give' such notice to the adverse parly, of the lime and place, when and where, such' deposition is to be taken, as the court, judge, justice, or clerk, shall think proper, and the adverse party may cross examine,” &c. (See Aikin’s Digest 126, sec. 1.) By the previous part of the section first cited, the authority to issue the commission, is given to the “judge, justice, or clerk,” before whom the oath is made preliminary to the issuance of the commission. As therefore, the court is superadded, in the clause which provides for the notice, it appears to be within the letter of the law, that in cases where the clerk, judge, or justice issuing the com*634mission, has failed to slate what notice shall be given, that the court before whom the deposition is attempted to be used as evidence, shall have the power of inquiring into, and determining the sufficiency of the notice actually given, from a view of all the facts.
That there may be causes in which a deposition may be read, where sufficient notice has in fact been given, though not required by the clerk, is evident from the case of Brahah v. Debrell, (1 Stew. Rep. 14) where the elerk had not required notice to be given, but had fixed the time when the deposition was to be taken, and notice was given of the time and place, on the day the commission issued; the court held, that it was sufficient. We think therefore, there was no error in permitting the deposition to be read. But in permitting the answer to the third interrogatory to be read, the court erred. The answer, instead of stating facts, states a conclusion of law from facts, which the witness knew himself, or had heard from others. Whether the relation of landlord and tenant existed between Parker and Stone, the jury could alone determine, under the direction of the court as to the law arising out of the facts. The remaining part of the answer, that'Parker was the claimant of the lot, is open to the objection of being either hearsay testimony, or that higher and better evidence exists of the fact; in either aspect, it is alike objectionable.
For this error, the judgment must be reversed, and the eause remanded.