Woodward against Woodson’s heirs.
Decided, Nov. 24th, 1818.
1. It is not error for the Court to refuse to instruct the Jur~, after being sworn~ and before ersdence introdnced, to render a special verdict.
2. The deposition of a person, ujider wlhorn the party c1aiin~ in whose favour it is of: fered, is not admissible as evidencc~ unless it appear from the Decd~ that no ye-course can ~be had against the witnesa in case of eviC tioli; aiid. this though a release to the witness be executed by such party, before the deposition is read to the Jury, but after it -ivas taken; and though, at a former trial of the cause, before the deposition was taken, a release vas tendered, in the presence of the Court, by another person under whom such party immediately claimed, of all claim which such other person might have, in any event, agunst the witness on account of the subject m controversy; the necessity of which release from that person was at that time greed to be waived by the opposite party.
ON the trial of a Writ of Right brought by the appelices against the appeliaxit in the County Court of Gooch~ land, the demaxidants by their Coixusci moved the Coui'~ I to instruct the Jury, after being sworn, and befin'e ei~i demce `was iitiroduced, to render a special verdict in the cause; which motion being overruled, they filed a bill of exceptions~
The defendant ofrereti in evidence the deposition of Joseph Payne, which had been taken by a Commissiom saving the right of excepting to his competency; to which evidence the tiemandauts objected, because the "said deponent was one of the persons tinder whom the defendant ~` pretended to claim; whereupon the defendant released " aiiy claim which he might or could have against the " said deponent on account of any interest he has or had in the Ian(l in controversy in this action; it beiii~ also remembered by the Court, that, at a former trial of this suit, and before the taking of the said deposi- " tiorj, ,Smith Pa~jne, of whom the defexidaxit ptwchased~ mid under whom he immediately claims, tendered in " the presence of the Court a release of all claim which I *228“ he, said Smith Payne, might have in any event against “ the said deponent on account of the land in controver- “ sy; the necessity of which release from the said Smith “ PaVne t° the said deponent was agreed to be waived by “ the demandants themselves; it appearing, also, that “ the said deponent had, about twenty seven years ago, “ purchased part of the land in controversy, of the said ei Smith Payne as executor of his father John Payne de- “ ceased, which said part had been sold and conveyed by “ the said deponent to said Smith Payne individually, and “ that it was, in that way alone, the supposed interest of “ the deponent accrued:” but the demandants still insisting upon their exception, the Court overruled it, and permitted the said deposition to go to the Jury; to which opinion of the Court they, also, excepted.
Verdict and Judgment for the defendant. Upon an appeal to the Superior Court of law, this Judgment was reversed, because -the County Court had refused to di- " rect the Jury to render a special verdict, when moved <e so to do by the appellants:” the verdict was ordered to beset aside, and the cause remanded for a new trial: from which judgment the defendant appealed.
Call for the appellant.
Leigh for the appellees.
The Court’s opinion was delivered by Judge Roane, as follows:
The Court
is of opinion, that there is no error in the Judgment of the Superior Court of law, so far as it reverses that of the County Court; but that the same is erroneous in reversing that Judgment because a special verdict was not directed to-be found; it not appearing, when that direction was asked for, that a special verdict was necessary or proper. The Court is further of opinion that there is error in the judgment of the County Court in admitting the deposition of Joseph Payne to be read in evidence, as (for all that appears to the Court) he was interested at the time his deposition was given, and, if the release in the Bill of exceptions mentioned would have made him competent, it came too late, being after he ivas examined. Both judgments are therefore revers*229ed; and the cause is remanded, wilhi (lirectiOns not to admit said deposition, unless it shall appear from the Deeds, (which are neither made Part of the Bill of exceptions, nor of the record,) that no recourse can be had against the witness in case of eviction.