
    Jones v. Greenolds.
    The return of non est upon a subpoena issued only a few days before the sitting of the Court, is not a sufficient evidence that the .witness is “unable” to attend, so as to enable the party to read his deposition taken de bene esse, under the Act of Virginia.
    Assault and battery.
    
      Mr. Youngs, for the plaintiff,
    contended, that he had a right to read the deposition of Beckwith Green, taken de bene esse, upon showing that a subpoena had been issued to the marshal of the District of Columbia, and returned non est. It was issued only a few days before the sitting of the Court. He cited the ease of Broadwell v. McClish $f Wolves, at April term, 1801, [ante, 4.]
   But the Court

said, that under the Act of Assembly, (P. P. 279, § 12,) the party who would use such a deposition, must show that the witness is unable to attend, and that the return of the subpoena is not satisfactory evidence to the Court of that fact. The fact was then proved by affidavit, and the deposition was read.  