November Term, 1796.

#### JONES vs. NEALE & BLOUNT.

DEBT on bond. To prove the execution of the bond, the plaintiff's counsel offered a deposition of the subscribing witness, who resided at Newbern, about 130 miles from Raleigh. It appeared that the witness had been subpœnaed by the plaintiff, but did not attend, and that he was at home in good health.

The deposition was offered as one taken in pursuance of the 30th section of the act of Congress, entitled, "An act to establish the Ju"dicial Courts of the United State:" approved the 24th September 1789; which provides for the taking depositions de bene esse in certain cases; one of which is where the witness shall live at a greater distance from the place of trial than 100 miles.

Two objections were made by the defendant’s counsel to the reading this deposition.

1. That it was taken de bene esse only, and therefore could not be read, unless the party offering it, first proved that the personal attendance of the witness could not be obtained. But here it appeared that he was within reach of the process of the court, and in sufficient health to attend.

2. That the certificate of the Magistrate, who took the deposition, did not set forth the reasons of taking it, which is made necessary by the act of Congress.

*82To the first objection it was answered by the plaintiff’s counsel, that the manifest intention of the act, is, that those circumstances which authorise the taking of a deposition de bene esse, should if they exist at the time of trial, entitle it to be read. That the residence of the witness at a greater distance from the place of trial than 100 miles is, by the act, placed on the same footing with his age, infirmity, going to sea, &c. and is equally a good cause for taking his deposition de bene esse. But the age or infirmity of a witness, would without doubt excuse his non-attendance, and entitle his deposition to be read : and there is good ground to infer the same of his residence at a greater distance from the place of trial that 100 miles.

This construction is greatly corroborated by that clause of the act, which defines the evidence admissible on appeals: but if a contrary construction should prevail, it appeared that the plaintiff had caused the witness to be subpœnaed, which was all that could be required to enforce his attendance, and if that proved ineffectual, the deposition ought to be read.

To the 2d objection :—that the act of Congress requires the Magistrate taking a deposition, to certify the reasons of taking it, in order to save the party at whose instance it is taken, the trouble and expence of bringing witnesses from a great distance, to prove the age, infirmity, &c. of the witness examined: but it left the party at liberty to incur this trouble and expence if he thought proper: as in taking depositions under commissions, issued from the state courts of this state, the party at whose instance the deposition is taken, may procure the commissioner to certify that notice of the time and place of caption was given to the adverse party; and such certificate is received by the court as conclusive evidence, as to that point; but if the commissioner fail to certify, the party must establish the fact.

Badger and Taylor, for the Plaintiff.

Woods, for the Defendants,

By the Court,

Patterson, J. and Sitgreaves, J.

It appears to be the true construction of the act of Congress, that those circumstances which will warrant the taking of a deposition de bene esse, should, if they exist at the time of trial, authorize the reading of it. But as this act is made in derogation of the common law it must be strictly construed, and litterally observed. To fail in one iota of the ceremonies prescribed by it is to fail in the whole.

The act requires that the deposition shall be retained by the Magistrate taking it until he deliver the same with his own hand, into the court for which it is taken, or shall, together with the reasons of its being taken, and of notice, &c. be by him sealed up and directed to such court. This part of the act has not been observed, therefore the deposition cannot be read.