Hirons v. Griffin

2 Del. 479

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

Court.

This is an important question of practice. The common practice is to take out a subpoena within the county, and get a return of non est inventus as a foundation for reading the deposition. Now is this sufficient evidence that the witness has departed from the state? Is this the legal evidence? Unless this appears, or some of the other reasons mentioned in the constitution, you have no right to read the deposition.

Here it appears from the deposition that the witness lived in Kent, where it was taken. What evidence is a return of non est by the sheriff of New Castle that the witness had left the state. We do not decide that if the subpoena had been issued to the sheriff of the county where the witness resided, it would not have been sufficient. This case does not require it.

The safest course on this subject is, to prove the departure of the witness out of the state by testimony at the bar; or to prove circumstances which would satisfy the court that he is not in the state.

Deposition rejected.