
    Thomas Kinney vs. John Berran.
    The magistrate, by whom a deposition was taken, certified thereon, that the “ cause assigned by the plaintiff” for taking the same was the deponent’s being about to leave the commonwealth, not to return in time for the trial; and at the trial, it appeared, that a subpoena had been issued to the deponent to appear as a witness, upon which a constable of the place, where the deponent resided, had returned that he had made diligent inquiry and search for the witness, and could not find him; it was held, that this was proof of sufficient cause then existing for using the deposition.
    This was an action of assumpsit tried before a j nstice of the peace on the 16th of December, 1848, and in the court of common pleas, on appeal, before Wells, C. J., at the last De cember term, 1849.
    At the trial in the court of common pleas, the plaintiff offered in evidence a deposition of John Cosgraff, taken on the 17th of January, 1849, with the following certificate of the magistrate thereon: “ The cause assigned by the plaintiff, for talcing this deposition, is the deponent being about to leave the commonwealth, and not to return in time for trial.” The deposition contained the following statement by the deponent : “ I have lived at Roxbury about five weeks, — have no family — am a laborer — have been at Brighton at work one day — am not at work there now— have no work at present, and am waiting for work. If I can find a job of work out of Roxbury, I shall take it. If I could find a job out of Massachusetts, I would take it, but I don’t intend to leave Massachusetts till spring opens. I will go to any place where I can get a chance for work that is convenient. I am not about to leave this state at the present time.”
    The defendant objected to the reading of the deposition, un less the plaintiff should first prove that the witness was then out of the commonwealth; and the objection being sustained by the presiding judge, the plaintiff thereupon produced a subpoena, signed by a justice of the peace for this county, directed to the witness, and summoning him to appear to testify in the case, with a return thereon signed by a constable of Roxbury, certifying that he had made diligent inquiries and search for the witness, and could not find him. The presiding judge ruled, that this evidence was not sufficient to show, that the deponent was out of the commonwealth, and therefore that the deposition was not admissible. The jury thereupon finding for the defendant, the plaintiff excepted.
    
      F. Hilliard, for the plaintiff.
    
      J. F. Woodside, for the defendant.
   Fletcher, J.

The justice does not certify the fact, that a cause existed which would warrant the taking of the deposi tion, but only that such a cause was assigned by the party It was proper that the party should show, that the cause existed at the time of the "trial; and the evidence offered bv the plaintiff, of the return by the constable of a search for the witness, was sufficient, and entitled the party to the use of the deposition. West Boylston v. Sterling, 17 Pick. 126.

Exceptions sustained.  