Parker v. Roe , 9 Del. 233 ( 1871 )

EJECTMENT for a town lot and premises in Dover. The parties, both the real plaintiff and the real defendants, claimed the premises in fee under title derived from one Sweeny Saxon, since deceased, whose title to them was incepted by a deed of bargain and sale dated November 1st, 1839. The only question of law involved in the case was in relation to the admissibility of the deposition of a witness taken in the usual form on a commission issued out of the State, and proposed to be read in evidence on behalf of the plaintiff.

Comegys, for the defendants. Before the deposition offered could be read in evidence, it should appear to the satisfaction of the court, not only that the deponent was out of the State, but also that he resided out of the State, when the commission was issued and his deposition was taken under it, and the best evidence of that would be the issue of, and the sheriff's return of non est to, a subpoena for him as a witness in the case, but which had not been done, and, therefore, there was nothing to inform the court judicially that he was either then or now out of the jurisdiction of it.

Ridgely, (Draper with him) for the plaintiff. Such had never been the practice, but the contrary course, the course adopted in this case, had been uniformily pursued and tacitly sanctioned, at least, by the court from the earliest period. Besides the prescribed rule of court which requires that a list of the witnesses residing out of the State proposed to be examined on commission in any case, shall be filed with the interrogatories before it can be issued, was itself a strong implied sanction of the long and uniform practice to the contrary.

By the Court. Without some special ground laid or reason stated to the contrary in this or any other case, the court will presume, and always has presumed, that the witness proposed to be examined in this method, resides out of the State when it is so represented and the rule referred to has been complied with.

The case afterward went to the jury on the facts proved without any charge from the court, and the plaintiff had a verdict.