Tompkins & Co. v. Wiley

6 Va. 242

Opinion

February 12.

The PRESIDENT

delivered the opinion of the Court.

‡

There being no objection stated in the Bill of Exceptions touching the regularity of the Deposition, it must be presumed to have been properly taken, though there is neither a commission nor a notice in the record. Whether it ought to have been read is the only question.

A party, to entitle himself to read a Deposition because of the absence of the witness, must show that he has used due diligence to find him, or that he is not within the jurisdiction of the Court, and the breach of its process. Falconer v. Hanson, 1 Camp. 171. The evidence set out in the Bill of Exceptions falls very far short of this. Host of it is but rumor. It by no means appears that due diligence was used by the Plaintiff to find the witness, or that he was without the reach of the process of the Court. The Judgment is therefore reversed, and the cause remanded for further proceedings, in which the Deposition is not to be read, without sufficient proof of the inability of the Plaintiff to produce the witness.

Absent Judges Cabell and Green.