Bowen v. Douglass — 2 U.S. 43

Majority

p. 44

August Sittings, 1790.

Bowen versus Douglass.

Syllabus

THE Plaintiff had taken out a subpoena, returnable to December term last, for two witneffes, who lived in Montgomery County; but as they did not then appear, an attachment, directed to the Sheriff of Montgomery County, was issued, returnable to the succeeding March- term; when, likewise, default was made in the appearance of the witneffes; and the caufe was continued on a rule for trial at the next term or Non Pros. Another fubpcena had been taken out, returnable this day, on which the caiife was marked for trial; but it proved as ineffectual as the preceding writs.

Under tírele circumftances, Levy, for the Plaintiff, moved to po’ftpone the trial. He Hated (and it was not denied by the op-pofite counfel). that an application.on his part to take the depo-fitions of the witneffes had been refufed : And he read a letter from the Sheriff of Montgomery, to ihew that an attempt had been made to ferve the attachment uppn the witneffes ; a certificate from the do&ors to prove, that one of the witneffes was fick; and a certificate from difinterefted and credible perfons to prove that the other witnefs was out of the way. 1. Dali. Rep. 251. SchloJJer v. Lefjer.

M'Kean, for the Defendant,

objefted to the poftpqnement; and infilled, that the rule for trial, or Non Pros, ought to be en

p. 45

forced, as the Plaintiff, having neglected to issue a second attachment, had not done every thing in his power to procure the attendance of the witnesses.

But,

—It is questionable, whether the act of Assembly empowers us to issue writs of attachment into another County; and there are other modes of proceeding, equally efficient, and clear of any doubt. It is unnecessary, however, to enlarge at present on this topic; as the Plaintiff has evidently done all in his power to procure the attendance of the witnesses; and the refusal of his overture to take their depositions, is a strong additional circumstance in his favor. The cause must, therefore, be continued, subject to the rule for trial at the next term, or Non Pros: And, in the mean time, we direct, on our own authority, a rule to be entered for taking the depositions of infirm witnesses de bene esse; to be read in evidence upon the trial, in case of death, or inability to attend. To that extent only, however, do we grant the rule; for, we think it would be going too far to add, that the depositions shall be read, in case the witnesses depart from the State.