The principles of law applicable to a case like the present have been carefully considered and fully stated in a recent decision of this court, Holly v. Boston Gas Light Co. 8 Gray, 123. It will be sufficient, therefore, to state briefly our conclusions on the various points raised by the exceptions in the case at bar.

1. First in order is the objection to the admission of the deposition of the witness Bass, on the ground that sufficient notice of the time and place of taking it was not given to the defendants. The general rule of law is, that every witness must give his evidence in person before the court and jury, so that they may be able to judge of his credibility by his appearance and manner of testifying. There are exceptions to this rule founded on considerations of convenience and necessity. But, if a paity desires to avail himself' of the testimony of an absent witness, the burden is upon him to make it appear that he has brought his case within some of these exceptions, so as to render the written evidence of the witness competent. This can be done only by showing that the provisions of law regulating the mode of taking depositions have been substantially complied with, because upon them depend the jurisdiction and authority of the magistrate by whom the evidence of the witness is reduced to writing and certified to the court. If any essential requisite is omitted, the deposition, however full and accurate it may be in other respects, cannot be regarded as legal evidence. In the present case, it does not appear that the defendants had the twenty four *348hours’ notice of the time of taking the deposition which is to be allowed in all cases under Rev. Sts. c. 94, § 18; Gen. Sts. c. 131, § 21. This is an important omission, which renders the deposition inadmissible. The intent of the.statute was, that a party should not be suddenly called upon at the pleasure of his adversary to attend to the taking of material testimony, without having some time for preparation and to procure the attendance of counsel. It is therefore no answer to this objection that the defendants attended the taking of the deposition and put cross interrogatories to the witness. This was done under a protest, and with an express reservation of their right to object to the use of the deposition at the trial. They had a right to the full notice required by law; the plaintiffs could not deprive them of this right; nor were they obliged to forbear attending the taking of the deposition or to forego the cross-examination of the witness. It was impossible for them to say with certainty that the deposition would not be admitted at the trial of the case, notwithstanding the omission to give the proper notice. They therefore had a right to appear de bene esse, not waiving any objection to the competency of the deposition when it should be offered in proof.

2. The next objection is that the jury were instructed that the plaintiffs were not bound to give notice to the defendants that the gas was escaping into their house, and that the omission of such notice was not evidence of any want of due care on the part of the plaintiffs. In a certain sense and to a qualified extent this instruction was correct. If the defendants were guilty of negligence in omitting to stop the leak in their pipe, by which injury was occasioned to the plaintiffs, they are entitled to recover the damages suffered by them, so long as they were guilty of no want of due care. But in all cases where negligence is the gist of an action, the party claiming damages is bound to show that he has not failed in the performance of his duty in relation to the subject matter out of which the suit has arisen. The assertion of a right involves the necessity of showing the performance of a corresponding duty. It seems to us that the instructions given to the jury omitted to make a *349proper application of this familiar principle to the facts in proof, and that in this respect they were inaccurate and deficient. It appeared that the house occupied by the plaintiffs was situated several hundred feet from the place where the leak in the pipe occurred, and on a street through which the gas was not conducted'; that there was no direct communication between the pipe through which the gas flowed and the plaintiffs’ house, bu that it escaped through a private drain into the plaintiffs’ cellar, and that the defendants had no knowledge or information which led them to suppose that the gas had made its way into the house occupied by the plaintiffs. Under these circumstances, if the defendants did not know that the leak in their pipe caused the gas to escape into the plaintiffs’ house, and by the use of reasonable care and after due inquiry could not ascertain the fact, the plaintiffs had no right to remain passive and permit the nuisance to exist for ten or twelve days to then injury, and claim damages of the defendants therefor during the whole time. Due diligence required some action on their part. It was their duty to use reasonable efforts to avoid or prevent the danger, or to give the defendants notice of the injury to which they were subjected, and afford them opportunity to remedy the difficulty. It was this aspect of the case which the instructions given to the jury failed to meet. They should have been told that, if the defendants did not know, and by the use of due care could not ascertain, that the gas was escaping into the plaintiffs’ house, they would not be liable for damages sustained after the time when the plaintiffs, in the exercise of due care, could have given notice thereof to the defendants, and they had thereby opportunity given them to prevent the further continuance of the nuisance on the plaintiffs’ premises. Peyton v. Mayor & Commonalty of London, 9 B. & C. 725. 2 Greenl. Ev. § 473;

3. For the' same reasons we are of opinion that the instructions were defective in omitting to give more full and precise directions as to the duty of the plaintiffs to leave the premises in order to avoid the evil effects of the noxious substances with which they were filled. It was clearly a want of due care to remain in the house after the plaintiffs had a reasonable oppor*350tunity to procure another house or place of residence, and to remove thither, and the defendants could not properly be held liable in damages for consequences which ensued after such removal might have been made. This precise point was decided in Holly v. Boston Gas Light Co. ubi supra.

The other rulings, to which exceptions were taken at the trial, seem to us to have been correct; but as the objections which are well founded go to the merits of the case, it is necessary to order a new trial. Exceptions sustained.