
    Minnis v. Echols.
    Wednesday, March 2, 1808.
    Depositions  — De Bene Esse — When May Be Read. — The circumstance that a witness has been summoned and fails to attend is not sufficient to authorise the reading of his deposition taken de bene esse; but it must be proved that he is dead .or, if living, unable to attend.
    In this case, which was an action of assault and battery brought by Echols against Minnis in the District Court, holden at Eranltlin Court-house, the plaintiff, at the trial, offered in evidence a deposition which had been taken de bene esse, and produced a summons which appeared by the ^sheriff’s return to have been duly executed on the deponent; to the reading of which deposition the defendant by his attorney objected, “because it did not appear from what cause the said witness was prevented from personally attending.’’ The District Court overruled the objection; whereupon a bill of exceptions was filed; and, the plaintiff having obtained a verdict and judgment, the defendant appealed.
    Call, for the appellant,
    cited 2 Bac. Abr. Title “Evidence.” E. to shew that, where a deposition is taken de bene esse, it cannot be read without proof of the inability of the witness to attend.
    Stuart, for the appellee,
    said that the reason of the law in England did not apply here, the mode of taking depositions in the two countries being different. In this country, notice to the adverse party must be given: but, in England, the parties have no power of cross-examining.
    On another ground, the deposition was properly admitted. The subpcena was returned served, and, the witness not attending, it is presumable she was unable.
    Call. Mr. Stuart is incorrect in supposing, that in England there is no cross-examination. The practice there is to put the interrogatories into the hands of a master, and he puts them to the witness.
    Stuart. If this be admitted, the party is yet confined to those interrogatories only which occur to him in the first instance. But here, as the witness is examined in presence of the parties, new interrogatories may be suggested.
    The practice of the country is to allow the deposition to be read wherever the subpoena is returned executed; since it is impossible, on the eve of a trial, to go about all over the country to obtain information whether the witness is able to attend; and it ought to be presumed, that he would *do his duty, if he could, unless the contrary appears. The sheriff of Bedford, who served the subpoena, might not have been at the District Court at the time of the trial.
    Call, in reply,
    said, that where the personal attendance of the witness could be had, his deposition ought not to be read, because, in that case, the great advantage of a viva voce examination before the court and jury is lost. The plaintiff might have moved the Court to fine the witness for failing to attend.
    As to the practice of the country, this is sufficiently proved by the rule prevailing even in the Courts of Chancery. In certain cases there, depositions may be taken de bene esse; but, where there is no proof that the witness has left the state, &c. if the deposition be not afterwards taken in chief, it cannot be read. Is it not a contradiction in terms to say, that the deposition was taken de bene esse, and yet there is no necessity to prove the inability of the witness to attend? Where the party could not shew this, I have never known an objection to such a deposition to fail.
    
      
       Depositions — inability of Witness to Attend — Proof.— In Lynch v. Thomas, 3 Leigh 685, it is said, that the court dicided in Mirnnis v. Eehols, 2 Hen. & H. 81, that the mere return of a subpoena duly executed, was not sufficient proof of inability.
      See also, Collins v. Lowry, 2 Wash. 75, and footnote; Butts v. Blunt, 1 Rand. 255; Tompkins v. wiley, 6 Rand. 242; Pollard v. Lively, 2 Gratt. 216. and note; Nuckols v. Jones, 8 Gratt. 267, and note; Tayloe v. Smith, 10 Gratt. 557. See monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74; monographic note on “Witnesses” appended to Claiborne v. Parrish, 2 Wash. 146.
    
    
      
       Gwillim’s Edition, 608.
    
    
      
       See the Revised Code, 1 vol. 67, ch. 6i, sect. 45.
    
   Friday, March 4. The Judges delivered their opinions.

JUDGE TUCKER.

The only question in this cause is, whether a deposition regularly taken de bene esse ought to have been permitted to be read in evidence upon the trial, without shewing from what cause the witness, who had been duly summoned, and the subpoena returned, was prevented from personally attending?

The course of proceedings at the common law being only by viva voce testimony, •depositions are only admissible where the witness who made them is dead, or cannot be procured; for till then they are not the best evidence the nature of the thing is capable of. Therefore, in order to make depositions evidence at law, it is neces-sary to shew that the witness *was dead or could not be procured. And this rule has been observed with such strictness in England that the depositions of a witness, taken fifty years before, being offered in evidence, but without any evidence that he was dead, (the party relying on the presumption from the length oí time, which would entitle a deed of that length to be read,) have been refused to be admitted ; because it was not shewn that proper search and inquiry after the witness had been made, But, where a witness has been sought for, and cannot be found, there his deposition may be read; for he is in the same circumstances as to the party who is to use him, as if he was dead, So where it is proved that a witness was subpoenaed, and fell sick by the way, his deposition is evidence: for then it is the best evidence that can be had.

But, although the courts of law in England did in such cases admit the depositions in writing of witnesses who were dead, aged, infirm, or going beyond seas, yet they had no power to examine such witnesses de bene esse, to be read in evidence if the trial should be deferred till after their death or departure; though this was sometimes done by consent of the parties: but recourse was indirectly had to the Court of Chancery, for that purpose, by a bill for perpetuating the testimony of witnesses, upon a principle similar to a bill quia timet, But, to avoid the expense and inconvenience of this course of proceeding, our law authorises the issuing of commissions to take the depositions of witnesses de bene esse, in certain cases; but without altering the principle upon which alone the depositions so taken can be read in evidence, viz. that the witness is unable to attend at the trial. And this inability must, I conceive, be shewn to the Court before his deposition can be read, The term de bene esse is well understood in courts of equity ; and, when applied to depositions, means such as can only be used provisionally. The legislature has used it in this sense in the law; and the reason, that the inability of a single witness, in perfect health, and not about to depart the *country, nor under disability to attend at the trial of a suit, should be made to appear to the Court, is certainly much stronger than that the inability of an aged or infirm witness should be so manifested. Yet the law expressly requires it in the latter case: and it is equally necessary in the former, the deposition being permitted to be taken only de bene esse in both cases. I am therefore of opinion, that the judgment ought to be reversed, and a new trial had, with directions to the Court not to permit the deposition to be read, unless it be proved to the satisfaction of the Court, that the witness is dead, or, if living, unable to attend, or that search and inquiry have been made after her, and she cannot be found.

JUDGE ROANE-

The clause of the act of 1792, respecting the depositions of aged, infirm, or absent witnesses, has a provision that such depositions shall be read on the trial, “in case the witness should be unable to attend.” The clause relating to those of a single witness in a cause, or to a material question thereof, omits this provision. It is not easy to assign a reason why this provision was not expressly extended to that case also; unless it be that the deposition of the witness, in that case, is to be taken merely for the purpose of perpetuating his testimony, and that, nevertheless, he must toe “produced at the trial.” This the courts of equity in England had already done of their own authority; for in the case of Shirley v. Ferrers, the Court of Chancery (upon argument) granted liberty to take the deposition de bene esse of a single witness to a material fact, though he was not stated to be old, infirm, or about to depart the country, to be used in an issue then depending; and defined the effect of such deposition, by declaring “that if the witness were then living, the plaintiff should produce him at the trial.” In our 'old acts (see the edition of 1768) this provision for taking the deposition of a single witness is not to be found; and, on principle, a good reason exists for reauir-ing the actual presence *of a single witness to a cause before the jury, who often judge by the manner of giving testimony; whereas this might with less inconvenience, be dispensed with, in relation to one, out of (perhaps) a host of witnesses.

If, therefore, this were res integra, I should desire further to consider whether the provision, respecting the reading the deposition of an aged, infirm, or absent witness, applied also to this case: but I believe that the practice arid general understanding of the country has decided the question in the affirmative, and I am not now disposed to disturb it. But, on the other hand, the most that can be asked in favour of the deposition of a single witness, is, that it should stand or fall by that provision: it is, certainly, not a stronger case for relaxing from the rule than those of the other description ; being only a de bene esse deposition, if the witness is not shewn to be dead, there is no other standard under which it can set up its claim to be received in evidence.

It is not shewn in this case whether the deposition in question is of the one or the other class: but, of whichever class it may be, it is necessary to be shewn at the trial that the witness was unable to attend. It is readily admitted that this construction will often impose difficulties upon parties: but these difficulties are not impossibilities. The party, in case of nonattendance, may have his cause continued, or have recourse against the witness for damages. On the other hand, however, it is of great importance that the benefits of jury-trial should not be impaired (as they would be, most emphatically, in the case of a witness on whose single testimony the fate of the cause depended) by withdrawing the witness from the personal observation of the jury.

I am, on these grounds, of opinion, that the decision of the District Court was erroneous, and that a new trial ought to be granted.

JUDGE FLEMING.

There are four cases, at law, in which the depositions of witnesses may be taken de bene esse, *under our act of assembly: 1. When any witness is about to depart the country; 2. When a witness, by age, sickness, or otherwise, shall be unable to attend the Court; — upon affidavit, &c. 3. Upon affidavit that a witness resides beyond sea or in a foreign country; and, 4. When a claim or defence depends upon a single witness. Such deposition may be read in evidence at the trial, in case the witness should be unable to attend.

It follows, then, of course, I conceive, that, if the witness be able to attend, such deposition shall not be read on the trial. The Court will require some satisfactory proof on the subject: and the question is, on whom ought the onus probandi to lie? On the party who is to derive a benefit from the evidence, (and who knows, or ought to know, that he cannot avail himself of the deposition, unless he satisfies, the Court of the inability of the witness to attend,) or on the adverse party, who' may be injured by the testimony; on whom it would be highly unreasonable to lay the burthen of proving the ability of his adversary’s witness to attend in person; one, perhaps, that he may never have known,, or heard of, till the taking of the deposition?

It has been argued, however, that the return of a subpoena, executed by a sworn officer, is sufficient evidence of the inability of a witness to attend; but the argument seems rather specious than solid; for long experience hath taught us that witnesses,, especially those at a distance, do frequently fail to attend, when summoned, on very frivolous pretences. I therefore concur in opinion, that the judgment of the District Court ought to be reversed, and a new trial awarded; with an instruction that, on the trial, the deposition of the witness is not to be read, but upon satisfactory proof of her inability to attend.

The judgment of the Court was entered as follows:

“That there is error in the said judgment in this; that the District Court permitted the deposition of Mary *Mag-daline Wolf, alias Mary Magdaline Ellmore, in the bill of exceptions mentioned, to be read as evidence to the jury, without proof of her inability to attend the trial personally.” Judgment reversed, and new trial awarded, upon which trial the District Courtis “not to permit the deposition aforesaid to go as evidence to the jury, unless, satisfactory proof be made of the deponent’s inability to attend the trial in person.” 
      
       1 A tic. 455; 2 Sir. 920; 2 Esp. Nisi Pr. 755.
     
      
       Buller’s Nisi Pr. 239.
     
      
       Ibid.
     
      
       3 Bl. Com. 383; Mitford’s Pleadings in Chancery, 50, 51, 130; 1 Ponb. 41 n.
     
      
       L. V. 1794, c. 141, s. 12, 14; Rev. Code, 1 vol. p. 279.
     
      
      
         3 P. Wins. 177.
     