Bowen v. Douglass

2 U.S. 43

Opinion

But,

BY THE COURT:

—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.