The question before the jury, and the one upon which their verdict turned, was the validity of the deed from Calvin Gerrish to the plaintiff, dated February 6, 1852. The defendant claimed the land as the representative of creditors of Calvin Gerrish, whose debts existed prior to the date of the deed, and who attached the land on the day the deed was made.

The jury must have found that the deed was fraudulent as to creditors; and, if the exceptions taken by the plaintiff to the ruling of the court upon the competency of the evidence are overruled, the verdict may stand; otherwise, it must be set aside.

The disclosure of David A. Gerrish was rightly excluded. What he may have said in the disclosure could have had no connection with the transactions, so as to affect the rights of the parties to this suit. He was not a party to this conveyance, nor interested in it, and it is immaterial what his theory may have been in order to discharge himself as trustee. His acts or sayings could not prejudice this defendant. He never owned this land, and the defendant had no controversy with him about it. The mortgage which Calvin gave to him was of another piece.

Maria B. Ames was called to discredit Enoch Coffin. Coffin had testified that he was present at the time the deed was executed, and saw certain papers delivered to Calvin Gerrish, the grantor, by David A. Gerrish, as the agent of the plaintiff, which the plaintiff contended were notes of Calvin, given up as the consideration of the deed. Maria B. Ames testified that in May, subsequent to the making of the deed in February, Coffin *517stated in her hearing that he did not at the time the deed was executed see any notes or papers delivered by David A. to Calvin, and that on their way home, after the deed was made, David A. told him his father had a life-lease of the farm, and had the notes at home in his desk.

Among the ways in which a witness may be impeached, is to show that he has made statements out of court contrary to what he has testified at the trial. 1 Greenl. Ev., sec. 462. And that was the course resorted to in the present instance. The first part of the statement of the impeaching witness was admitted without objection, but the latter part was excepted to as incompetent. But we think it was admissible. The point that was attempted to be made out by Coffin’s testimony, was that he had seen the notes given up to Calvin at Judge Eowler’s office; and he stated to Maria B. Ames not only that he did not see any. papers then delivered, but, further, that David A. said that his father had a life-lease of the farm, and that the notes were at home in his father’s desk. This latter part was not so directly contradictory as the first, but, being in the same conversation and upon the same subject, it was so far connected with it as to be part of it, and was in its character contradictory of the statement that the notes were given up when the deed was made.

The testimony of David A. Gerrish that he did not make the statement to Coffin which Maria B. Ames swore Coffin made to her, was rightly excluded. It was not the testimony of David A. Gerrish that the defendant was attempting to impeach, but of Coffin ; and the point was, whether Coffin had given a different account of the matter out of court from that which he had testified to in the cause. Coffin might have been called to testify that he never made any such statement to Maria B. Ames as she swore to ; and so any others who might have been present at the time of the conversation between Coffin and Mrs. Ames, if there were any, might also have been called to state what they heard ; but for Gerrish to testify whether he had so told Coffin would have been foreign to the matter at issue, that is, whether Coffin had so stated, and was inadmissible upon the *518general principle that evidence must be confined to the point at issue. 1 Grreenl. Ev., sec. 50.

The proposition to prove the value of the land by the rent of the same by the plaintiff, after the attachment was made and the controversy between the parties had arisen, was rightly rejected. It was in the nature of a statement by the plamtiff himself as to its value. He had fixed a price for the rent, which the tenant accepted, and it was his valuation, made at a time when evidence depreciating the value might be material. It was in effect his sayings as to the value, and therefore inadmissible.

The plaintiff objected to the deposition of Fisher Ames, on the ground that reasonable notice of the caption was not given. The statute provides that the party proposing to take a deposition shall cause notice to be given to the opposite party “ a reasonable time before the taking thereof.” Rev. Stat., chap. 188, sec. 15. And the rules of court provide that “twenty days’ notice shall be sufficient in all eases.” Rules of Court 20.

This deposition was taken at San Francisco, and forty-five days’ notice of the taking was given, exclusive of the day of service and the day of caption. The court below, upon testimony laid before them as to the course of the mails to San Francisco, decided that reasonable notice was given, and that the plaintiff, by proper diligence, might have attended the caption.

Notice of the taking of a deposition at such a distance from the residence of the parties cannot be regarded as governed by the general rules of court; if so, twenty days’ notice would be sufficient. That rule cannot override the statute, and when the court can see that it would be impossible for a party to reach the place of caption in twenty days, it must necessarily be held that the rule does not apply to such a case. Except where such impracticability exists, the rule must be applied; and it devolves upon the party excepting to show the fact that it does exist.

These exceptions, where, from the nature of the case, the rule cannot be applied, must be judged of and determined as they may arise, by the court before whom the case is tried. The fact of the distance from the residence of the party to the place of *519caption, and the time required to overcome it, and the consequent compliance or non-compliance with the statute in giving the notice, must be decided bj the presiding judge at the trial, upon the evidence furnished; and this court will not revise such a decision, unless the question is expressly reserved for that purpose. Bowman v. Sanborn, 26 N. H., (6 Foster) 87; Higbee v. Bacon, 11 Pick. 428.

Oases of this kind will very seldom arise, and we think it well enough to leave them to be determined by the judge at the trial, upon the facts presented, without attempting to lay down any further rules at present upon the subject.

The exception to the fourth answer of the deposition of Ames, as not being responsive to the question, we also think must be overruled. The answer is somewhat elaborate, but comes fairly enough within the purview of the question. The call was for what the plaintiff said in regard to the circumstances of Calvin Gerrish. If such a question had been put to the witness upon the stand, the court, it appears to us, would have permitted the answer to have been given as responsive to the interrogatory. Streeter v. Sawyer, 28 N. H. (8 Foster) 555.

We arrive at the conclusion, then, that the rulings of the court, upon the evidence, may be sustained; and as those are the only questions presented by the case, there must be

Judgment^on the verdict.