Hirons v. Griffin , 2 Del. 479 ( 1838 )

APPEAL. On the trial of the cause the defendant offered to read the deposition of Isaac M. Register, taken de bene esse, and to lay the ground, he produced a subpoena issued to the sheriff of New Castle county and returned non est inventus. It appeared that the witness resided in Kent county.

Gilpin, for plaintiff, objected to reading the deposition in evidence, because it appeared from the evidence, that Isaac M. Register resided in the county of Kent, over which county this court has jurisdiction; and a return of non est by the sheriff of New Castle county was not sufficient to let in the deposition. Depositions taken de bene esse, are only to be read in case of departure of the witnesses out of the state, c. Sec. 16,Constitution. Hamilton. — The usual course has been adopted in this case to order a subpoena for the witness and get a return of non est to it.

Court. — This is an important question of practice. The common practice is to take out a subpoena within the county, and get a return of non est inventus as a foundation for reading the deposition. Now is this sufficient evidence that the witness has departed from the state? Is this the legal evidence? Unless this appears, or some of the other reasons mentioned in the constitution, you have no right to read the deposition.

Here it appears from the deposition that the witness lived in Kent, where it was taken. What evidence is a return of non est by the sheriff of New Castle that the witness had left the state. We do not decide that if the subpoena had been issued to the sheriff of the county where the witness resided, it would not have been sufficient. This case does not require it.

The safest course on this subject is, to prove the departure of the witness out of the state by testimony at the bar; or to prove circumstances which would satisfy the court that he is not in the state.

Deposition rejected.