
    *Tompkins & Co. v. Wiley.
    March, 1828.
    Depositions — Regularity—Presumption in Appellate Court. — If there be no objection made to the regularity of a Deposition in a Court of Daw, the Court of Appeals will presume it was properly taken, although there is neither a commission nor notice in the record.
    Same — When Admissible as Evidence. — It is improper to read a Deposition in a Court of Daw; on account of the absence of the witness, unless the party offering it proves that he has used due diligence to find the witness, or that he is not within the jurisdiction of the Court, and the reach of its process.
    Assumpsit by Robert Wiley against Alexander Tompkins and three others, merchants and partners trading under the firm of Alexander Tompkins & Co., charging them as bailees of certain goods shipped by Richard Ashhurst, of Philadelphia, to the Plaintiff; and which, by the carelessness and negligence of the Defendants in keeping them, were totally lost to the Plaintiff. At the trial before the Superior Court of Law for Bedford county, the Defendants excepted to an opinion of the Court. The Bill of Exceptions sets forth, that at the trial the Plaintiff offered in evidence the Deposition of Jacob Kaskaden; and for the purpose of proving that the said witness was out of the Commonwealth, he introduced a witness, who stated, that Kaskaden was a single man having no family, and had resided as a store-keeper in the town of Fincastle; that about twelve or eighteen months ago, he heard the said Jacob say that he was going to Ireland; about which time he left Fincastle, as the witness supposed, for the purpose of visiting Ireland; but, after an absence of some weeks, he returned to Fincastle, and upon being asked if he had so soon returned from Ireland, he replied that he had only been to the City of New-York. After the return of the said Jacob from New-York, he remained a short time about and in the town of Fincastle, until about twelve months past, when he left that town, and went to places unknown to the witness, nor has the witness heard that he resides any where within or without the Commonwealth ; has never heard any enquiries made about him, nor had he heard *any thing about his intention to leave the State as above stated. Upon being asked the question, this witness further- said, that he had not only never heard that the said Jacob was-out of the Commonwealth, but that he had never heard a rumor to that effect, nor any rumor about where he was, since he had gone away from Fincastle, except that some time after he had left Fincastle, the Plaintiff said he had received a letter from him in which letter he announced that he had gone down the river to New Orleans, but the witness did not know the hand-writing of the said Jacob. The Plaintiff also introduced another witness, who stated that the said Jacob was a single man without any family, and had lived until eight or nine months past in Fincastle, but the witness does not know where he now resides; that he has never heard that he proposed to leave the State, except that he thinks that the Plaintiff in this case showed him a letter which the Plaintiff represented as being from the said Jacob; in which letter, the said Jacob said something about going to New Orleans, but the witness is wholly unacquainted with the hand-writing of the said Jacob, and does not know that the letter aforesaid was written by him. This witness further stated, that except as to the aforesaid letter, he had not only never heard that the said Jacob was out of the Commonwealth, but that he had not even heard a rumor to that effect, having heard nothing about him respecting the place to which he was gone, and where he intended to go and reside; he only knew that he had gone away to parts unknown to the witness, leaving no business or connexions behind him : he had heard nothing said about him. This being all the evidence on this point, the Defendants objected to reading the Deposition, because it did not appear from the foregoing facts that the witness was either out of the Commonwealth, or unable to attend the Court; but, the Court overruled the objection, and admitted the Deposition to be read. Verdict ánd Judgment for the Plaintiff for $349 85, and the Defendants obtained a Supersedeas to the Judgment.
    *Johnson, for the Plaintiffs in Error.
    Leigh, for the Defendant in Error.
    
      
      Depositions. — See monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
      See principal case cited on this subject in Steptoe v. Read, 19 Gratt. 8.
    
    
      
      Evidence — Objections to — What They Hust Show.— In Brown v. Point Pleasant, 36 W. Va. 303, 15 S. E. Rep. 213. it is said: “It is the duty of a party objecting to evidence to specify and point out such portions as he deems objectionable, and. in the absence of any such specifications on his part, the court will overrule the motion, if any of the evidence thus objected to en masse should be legitimate and proper. 1 Thomp. Trials, § 696; Barker v. Barker’s Adm’r, 2 Gratt. 344; Tompkins v. Wiley, 6 Rand. (Va.) 242.”
      See further, monographic note on ‘Evidence” appended to Dee v. Tapscott, 2 Wash. 276.
    
   February 12.

The PRESIDENT

delivered the opinion of the Court.

There being no objection stated in the Bill of Exceptions touching the regularity of the Deposition, it must be presumed to have been properly taken, though there is neither a commission nor a notice in the record. Whether it ought to have been read is the only question.

A party, to entitle himself to read a Deposition because of the absence of the witness, must show that he has used due diligence to find him, or that he is not within the jurisdiction of the Court, and the breach of its process. Falconer v. Hanson, 1 Camp. 171. The evidence set out in the Bill of Exceptions falls very far short of this. Host of it is but rumor. It by no means appears that due diligence was used by the Plaintiff to find the witness, or that he was without the reach of the process of the Court. The Judgment is therefore reversed, and the cause remanded for further proceedings, in which the Deposition is not to be read, without sufficient proof of the inability of the Plaintiff to produce the witness. 
      
      Absent Judges Cabell and Green.
     