
    Collins v. Lowry & Co.
    October Term, 1795.
    Deposition — Absence oí Witness — Evidence.  — What proof of the Inability of a witness to attend the trial is necessary, wlien his deposition, taken de Rene esse, is offered to "be read.
    Same — Notice of Taking. — when a deposition is read at common law, or whether it was taken de bene esse, or in chief, it should appear in the record, upon an appeal, that notice of the time and place of taking it had been given to the adverse party.
    Appeal — Motion to Dismiss — Entering Appearance.— The counsel for the appellee may move to dismiss the appeal, for want of an appearance being entered for the appellant, before he opens the record, but not afterwards.
    This was an action on the case brought by the appellees against the appellant in the District' Court of Northumberland, and at the trial of the issue, the deposition of a witness was read by the plaintiff, to which the defendant objected, and being over-ruled by the court, he filed a bill of exceptions stating, that a witness proved, that he had shortly previous to the Term, seen a gentleman from Alexandria, (at which place the deposition was taken,) who informed him, that the deponent had not long before that, sailed for Europe, and had not returned, and that this was all the evidence in the cause. The record does not state, whether the deposition was taken de bene esse or in chief; oF whether notice had been given to the defendant of the taking of it.
    *Washington for the appellee contended,
    that the evidence of the witness accounting for the absence of the deponent, was the best which could have been obtained, and that in cases of this sort, it was the practice to admit hearsay evidence to account for the absence of the witness who had given a deposition.
    
      
       Deposition-Absence of Deponent — Hearsay Evidence to Prove. — In Lynch v. Thomas, 3 Leigh 685, the court said; “In Collins %. Lowry, 2 Wash. 75, it was decided (and very properly) that hearsay evidence that the deponent has left the country, and has not returned, is not sufficient to authorize the reading his deposition.”
      The principal case is cited on page 689 of Lynch v. Thomas, supra.
      
      In 6 Enc. PI. & Pr. p. 668, it is said: "Hearsay evidence alone that the witness has left the state is not sufficient. Collins v. Lowry, 2 Wash. 75. But hearsay evidence may be considered, in the discretion of the court, in connection with other proof and circumstances attending the case. Lynch v. Thomas, 3 Leigh 682.”
    
    
      
       Depositions — Notice of Time and Place of Taking-General and Special Objections to Reading of Depositions — Difference—The principal case is cited and distinguished in Steptoe v. Read, 19 Gratt. 8. See Jeter v. Taliaferro, 4 Munf. 80.
      See monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
    
      
       See monographic note on “Appeal and Error" appended to Hill v. Salem, etc., Turnpike Go., 1 Rob. 263.
    
   The PRESIDENT.

If the deposition were taken dé bene esse, the evidence offered to excuse the absence of the witness was defective; if it were taken in chief, no proof upon the subject was necessary. But in either case, notice of the taking of it ought to have been given to the defendant, and as none is stated in the record, the judgment is for that reason erroneous and must be reversed, unless the appellee’s counsel supposes he can shew that notice was given, and that the deposition was taken in chief, and prays a certio-rari for the purpose, which if asked for, will be granted. ,

The appellee’s counsel declined taking a certiorari', and the judgment was reversed.

Note; after the President had delivered the opinion of the court, Washington moved to dismiss the appeal, no appear-anee hawing been entered for the appellant.

By the Court. You might have dismissed the appeal before the record was opened, but it is now too late.  