
    *Unis & als. v. Charlton’s Adm’r & als. Four Cases.
    
    July Term, 1855,
    Lewisburg.
    1. Depositions-!- — Taken without Authority — Effect —A deposition is taken by a plaintiff in another state, to be read as evidence in a cause depending here; and the justices certify that the defendants appeared by counsel and cross-examined the witness; And the deposition shows that counsel professing to represent the defendants, did appear and cross-examine the witness. It does not appear, however, that the deposition was taken under a commission, or that the court here had ever authorized a commission to issue; nor was any notice to the defendant produced or proved. The deposition is taken without authority; and the j ustices having no authority to take the deposition, their certificate is no proof of any fact it states. .
    2. Samet — Same—Admissibility as Evidence, — A deposition having been taken without authority or notice, is not admissible as evidence; and the objection to it may be taken when it is offered to be read as evidence to the j ury.
    3. Slaves — Suit for Freedom — Evidence—Declarations of Ancestress. — In a suit by persons held as slaves, for their freedom, on the ground that the ancestress had been brought into the state without the oath then required by the statute having been taken by her master, her declarations that she was free in the state from whence she was brought, and request to the witness to write to that state to get information on the subject, it not appearing that such declarations or request was made within ' twenty years after she was brought into the state, are not competent evidence to rebut the presumption arising from lapse of time, that the oath was taken by the master.
    4. Same — Same—Same—Character of flaster. — Nor in such case is it competent to prove the character of the master holding her in the state, to account for her failure to assert her freedom.
    5. Same — Same—Competency of Witnesses — Case at Bar. — In four suits for freedom, the plaintiffs in all of which claim as the descendants of one woman, who they allege was free, and the defendants in all of which claim under C, who the plaintiffs insist purchased their ancestress from S, the man who brought her into the state, with a general warranty of title, and whose administrator is a defendant in one of the suits, the cases are tried together, and it is agreed by the counsel that the depositions taken in/one case shall be read in all; the defendants offer in evidence the deposition of S, and with it they offer a release from the administrator of O to *S, of all right of recovery upon the warranty of title. Held: The release of the administrator is sufficient to restore the competency of S, and if it does not apply to all the plaintiffs in the other suits, still under the agreement of counsel, the deposition is admissible as evidence on the trial.
    6. Depositions — Impeachment of Witness — Inconsistent Statements — Laying Foundation. — The deposition of a witness having been introduced as evidence, it is not competent for the other party to impeach his credibility by the proof of statements made by him at another time, inconsistent with, or contradictory of, the statement in his deposition, before the foundation for the introduction of such impeaching testimony is first laid by an examination of the witness touching the fact of his having made such statements.
    7, Samet — Time of Taking — Case at Bar. — A deposition taken at so late a day that the other party cannot attend at the time and place of taking it, and then get to the court, where the cause in which it is taken is to be tried, by the commencement of the term, is not admissible in evidence.
    These cases were before this court in 1847, and are reported in 4 Gratt. 58. They were four actions for freedom broug-ht in 1826, in the Circuit court of Montgomery county. All the paupers were descendants of a woman named Flora, who, they alleged, was a freewoman in Connecticut, and abducted from thence with her two infant children; and that they had been brought into Virginia, without the oath being taken by the claimant of them which was then required by the statute. The defendant in one of the cases was the administrator of James Charlton; and the other defendants claimed under Charlton, from whom they derived those of the paupers who were in their possession.
    There were many trials of the cases; and they were removed to the Circuit court of the county of Rockbridge, from whence the former appeals were taken. After the cases were sent back they were returned to the Circuit court of Montgomery county; and came on for trial' there in June 1853: By consent they were all tried together. Upon the trial the plaintiffs offered, in evidence the deposition of Shubal Stiles, taken in June 184S, before two justices of the peace for the x'county of Hartford in the state of Connecticut. The deposition showed that W. Hartwell, professing' to act as counsel for the defendants, appeared and cross-examined the witness; and the justices certify that the defendants appeared by their counsel at the time and place of taking said deposition.
    To the introduction of the deposition as evidence, the defendants objected, upon the ground that no notice of the time and place of taking it had been given; and also upon the ground that no commission had been awarded to authorize the justices to take it. No notice or commission was produced, nor did the record show that a commission had been awarded; and the certificate of the justices did not state that it was taken by virtue of a commission: These objections were not endorsed on the deposition. The court sustained the objection, and excluded the evidence; and the plaintiffs excepted.
    The plaintiffs also offered in evidence the deposition of Henry Carty. In answer to questions put to him by plaintiffs’ counsel, he said that old Flora, the ancestress of the plaintiffs, had told him at different times that if she had her just rights she would be a freewoman; and she at the same time wanted him to write her a letter to send back where she came from, to obtain information from the people concerning her freedom. That Squire Howard, who is dead, told the witness that Flora had applied to him as a magistrate concerning her freedom. And that James Charlton was a man of severe temper and likely to keep his slaves in subjection.
    The plaintiffs offered this testimony to rebut the presumption arising from lapse of time, that James Stephens, who, defendants alleged, brought Flora and her children into the state, had taken the oath prescribed by the act of 1778. But the defendants objected to so much of the deposition as is above given, and the '*court sustained the objection ; and certified that it did not appear when the declarations of Flora were made; but that it did appear that her application to the justice Howard was not made within twenty years after she was brought to Virginia. And it further appeared, from the petition filed by the plaintiffs, that they did not rely upon this ground as entitling them to freedom, when they instituted their suits. To this opinion of the court the plaintiffs again excepted.
    All the testimony offered on the trial of these causes was in the form of depositions; and after the plaintiffs had read the depositions of several witnesses, for the purpose of proving that Flora and her two children had been brought from New York to Virginia by a certain James Simpkins; and that they had been sold by Simpkins to James Charlton, with a general warranty of title; the defendants offered in evidence the deposition of Simpkins, which was objected to by the plaintiffs on the ground that the witness was interested in the result of the suits. To obviate this objection, the defendants produced certain releases, whereby John McC. Taylor, the administrator of James Charlton, released to Simp-kins all right of recovery which might in any way accrue to him as administrator as aforesaid, against the said Simpkins, in case the plaintiffs in the action against himself or in any of the other actions should recover their freedom. There were also releases from a number of the heirs of James Charlton. These releases bore date prior to the taking of the deposition. The plaintiffs objected that these releases were insufficient to restore the competency of the witness, as they did not release as to all the defendants, and because the release executed by Taylor was an insufficient release. But the causes were all tried together, and it was agreed by the counsel on both sides that the evidence taken in one case .should be read in all. The court therefore overruled the objection, and admitted the evidence; and the plaintiffs again excepted.
    *After the deposition of Simpkins had been read, the plaintiffs offered evidence to prove that he had made statements inconsistent with his deposition. The defendants objected to this evidence, and the said statements not having been made on oath, and no foundation having been laid for their introduction, the court sustained the objection, and excluded the evidence: . And the plaintiffs again excepted.
    The plaintiffs further offered in evidence the deposition of Robert Gardner. This deposition was taken on Thursday, the 11th of April 1850, at his house in the town of Christiansburg, in the county of Montgomery. At that time these actions were pending in the Circuit court of Rockbridge county; and the term of that court commenced on the 12th of April. The distance from the residence of the defendants to Lexington, where the court was held, is about ninety miles, and Taylor, one of the defendants, attended the court at that term. The notice for taking the deposition was served on one of the defendants on the 8th, on another on the 9th, and on another on the 10th of April. The defendants objected to the evidence on the ground that the notice was not reasonable; and the court sustained the objection: And the plaintiffs again excepted.
    There were verdicts and judgments in all the cases for the defendants: Whereupon the plaintiffs applied to this court for super-sedeases, which were allowed.
    Hoge, for the appellants,
    insisted:
    1st. That the objection to Stiles’ deposition should not have been sustained: That the objection was not taken before the jury were sworn, and could not be taken after-wards. And he insisted further, that the appearance of the counsel for the defendants and the cross-examination of the witness by him, dispensed with the necessity of producing the commission and notice. He referred to Jones v. Tucas, 1 Rand. 268; 2 Dan. Ch. Pr. 1122.
    *2d. That the evidence as to the statement and acts of Flora should have been admitted; that it was for the jury to decide whether these statements were made within twenty years from the time she was brought into Virginia. Abraham v. Mathews, 6 Munf. 159; Kheel v. Herbert, 1 Wash. 203; Ross v. Gill, Id. 87.
    3d. That Simpkins was interested, and his testimony should have been excluded. Woodward v. Woodson, 6 Munf. 227; 1 Greenl. Fvi. 501, 502. That the releases were not by all the parties interested; and moreover, though they were dated prior to the taking of the deposition, yet they were not proved until the trial, when they were produced by the defendants. He referred to 1 Philips’ Fvi. 160; Mandevillev. Perry, 6 Call 78; Rowt v. Kile, Gilm. 202; Temple v. Ellett, 2 Munf. 452; Wilcox v. Pierman, 9 Feigh 144; Turberville v. Self, 4 Call 580; Richie v. Moore, 5 Munf. 388. That a release from the administrator was not sufficient, 1 Rev. Code of 1819, p. 387, 432, the administrator not having any interest in the slaves except for the payment of debts. He referred to Rosser v. Depriest, 5 Gratt. 6; Fisher v. Bassett, 9 Feigh 119; 1 Story’s Fqu. Jur. 23, 24, 25; Knight v. Yarborough, 4 Rand. 566. That the agreement to admit the evidence in all the causes, did not authorize the admission of illegal evidence in one cause, because it was legal in another. Chitty on Contr. 74, 76; Story on Contr. I 634, 635, 636.
    4th. That the evidence of the statements of Simpkins was admissible to impeach his credit. Charlton’s adm’r v. Unis, 4 Gratt. 58.
    Baldwin and Paiton, for the .appellees,
    insisted:
    1st. That the want of a notice and commission was conclusive against the admission of Stiles’ deposition: That the-appearance of counsel for the defendants did not cure this defect. Blincoe v. Berkely, 1 Call 405. *But that there was no evidence of such an appearance, or even that the deposition was taken; for the justices had no authority without a commission, and their certificate thereof in the absence of a commission proved nothing. Gillespie v. Gillespie, 2 Bibb’s R. 90; Taylor v. Whiting, 4 Monr. R. 364; Clarke v. Goode, 6 J. J. Marsh. R. 637. That the objection was taken at the proper time, and it was not such an objection as was required to be taken before the jury was sworn.
    2d. That the statements of the woman Flora were not proper evidence for the purpose proposed. That after twenty years it will be presumed the oath was taken. Abraham v. Mathews, 6 Munf. 159; Mc-Michen v. Amos, 4 Rand. 134; George v. Parker, Id. 659; Betty v. Horton, 5 Feigh 615. That the statement had no relation to the oath, but to her having been free in Connecticut. That moreover the claim spoken of by the statute is a judicial assertion of the claim; and such as it was, it was after she had been here twenty years.
    3d. That the causes were all tried together, and the true construction of the agreement of the counsel is, that if the evidence was legal in one case, it should be admissible in all. But if this was not so, the release of the administrator of Charlton, who alone could sue upon the warranty of Simpkins, was sufficient to render him a competent witness. 1 Fornax on Fx’ors 286, § 4; 287, 'i 9; Hays v. Hays, 5 Munf. 418.
    4th. On the fourth point made by the counsel for the appellants, they referred to 1 Greenl. Fvi. I 462; 2 Philips’ Fvi. 432.
    5th. As to the notice to take the deposition of Gardner, they referred to Stubbs v. Burwell, 2 Hen. & Munf. 536; Winsookie Turnpike Co. v. Ridley, 8 Verm. R. 404; Waters v. Harrison, 4 Bibb’s R. 87; Ren-nick v. Willoughby, 2 A. K. Marsh. R. 20; 2 U. S. Dig. 219.
    
      
       Depositions — Taken without Authority — Admissibility as Evidence. — The principal case was distinguished in Steptoe v. Read, 19 Gratt. 7.
    
    
      
       Same. — See monographic note on “Depositions” : appended to Field v. Brown, 24 Gratt. 74.
    
    
      
       impeachment of Witnesses — Inconsistent Statements —Laying Foundation. — It seems well settled in Vir- § ginia that where the object is to impeach the credibility of a witness by proof of statements previously made inconsistent with his testimony in the trial, the foundation for such impeaching testimony must first be laid by an examination of the witnesses with reference to such inconsistent statements. The principal case is cited as authority of this rule of evidence in Jackson v. Com., 23 Gratt. 934; Little v. Com., 25 Gratt. 928; Davis v. Franke, 33 Gratt. 413, 425, and foot-note; Morgan v. Franklin Ins. Co., 6 W. Va. 498; State v. Goodwin, 32 W. Va. 182, 9 S. E. Rep. 87. The rule equally applies, whether the declaration of the witness supposed to contradict his testimony be written or verbal. N. Y., P. & N. R. R. Co. v. Kellam, 83 Va. 860, 3 S. E. Rep. 703, citing the principal case; Charlton v. Unis, 4 Gratt. 58; Conrad v. Griffey, 16 How. 38. And in Virginia — as seen from the principal case — the rule holds good even where the witness to be discredited testifies by deposition.
      : In Mattox v. United States, 156 U. S. 237, 15 Sup. Ct. Rep. 342, the principal case was cited to the point that the fact that the witness is dead does not change the rule. Mb. Justice Shibas, in dissenting opinion to the same case, said that the principal case was merely a case illustrating the general rule, and did not b.ear on the problem for solution in the case at bar.
    
    
      
       §Depositions — Time of Taking. — See the principal case cited with approval in Fant v. Miller, 17 Gratt. 226; Wise v. Postlewait, 3 W. Va. 459.
    
   *DANIFF, J.

Proceeding to consider the causes of error in the order in which they are assigned in the petition, it seems to me that there is no just exception to the action of the Circuit court in excluding the deposition of the witness Stiles. It appears from the bill of exceptions, that no commission for taking the deposition, no notice of the time and place of taking it, was .produced; the record did not show that a commission had been awarded, and the justices in their certificate do not state that they took the deposition by virtue of a commission. There was thus an absence of all proof to show that the plaintiffs had complied with the conditions on the performance of which their right to read the deposition depended. The failure to object to the deposition on this score, before it was offered on the trial, was no _ waiver of the objection. It was for the.’ plaintiffs to show either an observance of the requirements of the statute under which they claimed a right to read the deposition, or that the defendants had waived or dispensed with it. Whether an appearance of the defendants by counsel, at the time and place of taking the deposition, might have been taken as the evidence of such waiver, is a question which cannot be raised. The only evidence of such appearance is in the certificate of the justices: And as it does not appear that they acted under a commission, they had no warrant or authority to speak in the matter; and their certificate is without force or virtue as proof in the cause.

No ground is laid on which to raise the question which the plaintiffs seek to present by the second cause of error assigned. In the fourth section of the act of 1778, for preventing the importation of slaves, 9 Hen. St. at Farge 471, an exception is made in favor of persons removing from any other of the United States into this; provided that within a certain period after their removal they take an oath to the effect that xtheir removal into the state is not made with an intention to evade the provisions of the act, and that they have not brought their slaves with an intention of selling them. And by repeated adjudications of this court (as in Abraham v. Mathews, 6 Munf. 159, George v. Parker, 4 Rand. 659), made in cases arising under acts containing like provisions, it has been settled that twenty years’ possession, by the master, of slaves thus brought into the state, without any claim of freedom on the part of the slaves, justifies the presumption that the master had duly taken the oath required by law. How such a claim should be asserted in order to have the effect of repelling this presumption, has never been decided by this court, and does not arise for consideration now. It is obvious, however, that no matter what may be the essentials of such a claim, or how it must be asserted, it can be of no avail unless made within the twenty years before the presumption has matured. It appears from Carter’s statement that Charlton had purchased Plora, the ancestress of the plaintiffs, at least forty-five years before the date of his deposition; and he no where fixes the date of the loose declarations of Plora, that “if she had her just rights, she would be a freewoman.” These declarations, from aught that appears to the contrary, may have been made long after the presumption had attached; and were therefore plainly inadmissible as testimony for any purpose. The opinion of the witness in respect to the temper and character of Charlton as a master, was, I think, equally inadmissible. If such testimony could be resorted to as furnishing a reason or argument why the presumption should not be allowed, it would be equally proper to go into proofs of the character of the slaves, as whether remarkable for timidity or otherwise. Such proofs, it is manifest, would rather serve to dissipate the attention of the jury, and to invite them into the indulgence of loose surmise and conjecture, than to *guide them to those results which it is the aim and tendency of legitimate testimony to establish. The exception to the testimony was, I think, properly sustained by the court.

I cannot perceive any force in the objection to the releases executed to the witness Simpkins, on the score that they were not executed by all of the defendants. No good reason is suggested why such a release should be made by any one but Taylor, the personal representative of Charlton. No suit could be maintained against Simpkins for a breach of the warranty, whether express or implied, of the title to the plaintiffs as slaves, by any one but Charlton’s representative, and the release of all right of recovery by him divested the witness of all interest in the controversy, in respect to all of the plaintiffs embraced in the release.

The further objection made to the releases, that they do not extend to all the plaintiffs in each of the suits, is met by the statement of the judge in the bill of exceptions, that “it was agreed by the counsel on both sides that the evidence taken in one case should be read in all.” The terms of this agreement, it is obvious, are fully satisfied when it is shown that the deposition would have been legal evidence in any one of the cases: And as it is conceded that the releases embrace all of the plaintiffs in one of the suits, I see no reason why the agreement should not be allowed to cure the omission in the releases. The convenience of both sides was no doubt promoted by the agreement. The plaintiffs in each of the suits were all descended from one common ancestress; the testimony in respect to the claim of one was equally applicable to the claim of each; and it is difficult to conceive of injury resulting to the rights of any of them from the court’s enforcing the agreement according to its terms. The third ground of error is, therefore, I think, untenable.

The fourth assignment of error raises a question *which, it is somewhat remarkable, has never before been distinctly presented to this court for its decision, to wit, whether a witness who has testified in a cause may be impeached by the proof of contradictory or inconsistent statements, alleged to have been made by him on other occasions, before the foundation for the introduction of such impeaching testimony is first laid, by an examination of the witness touching the fact of his having made such statements. In the Queen’s Case, 2 Brod. & Bing. 292, 6 Eng. C. L. R. 121, the question, so far as it relates to examinations in courts, was very fully discussed, and was decided in the negative by the unanimous opinion of the judges. This case occurred in 1820. The rule there stated has been adhered to in numerous cases since decided, and may now be regarded as firmly established in England. In some of the United States the courts have refused to adopt the rule; but I am satisfied, as well from an examination of such of the reports as are to be found in our library, as from a statement ,of Mr. Greenleaf in a note to his Treatise on the haw of Evidence, p. 579, that the rule has obtained in a large majority of the states of our Union.

In the case of Downer v. Dana, 19 Verm. R. 338, a distinction is taken between the case of a witness examined in court and one who has given his testimony in the form of a deposition. In that case the court sanctions, and expresses a determination to adhere to, the rule, that testimony, as to the previous declarations of a witness produced upon the stand, offered for the purpose of impeaching him, is not to be received, unless an opportunity be first afforded him to explain or qualify the imputed declaration. But it still decides that the rule has no application to testimony in the shape of depositions, whether taken with or without notice, and whether the adverse party attended at the taking or not, and that the adverse party *may in such case, without previous enquiry, prove any inconsistent declarations or conduct of the witness.

After a careful examination of the opinion in which this distinction is taken, I have been unable to perceive the force of the reasoning on which it is made to rest. The principal reason assigned by the learned judge who delivered the opinion of the court, for refusing to apply the rule to depositions, is, that such a practice would impose on a party, wishing the privilege of iuipeachment, the necessity of attending in -person or by attorney at the taking of every deposition to be used against him, within or without the state, which, on any other account, he might not be disposed to do. This argument ab inconvenienti is not wholly without show of reason when urged in behalf of the exercise of the privilege of impeachment by a party who has had no notice of the taking, or who, though notified, did not attend at the taking of a deposition which he seeks to discredit, but seems to me devoid of weight when extended to the case of a party who was present at the taking of the deposition, and had thus the same opportunity of cross-examining the witness, and calling his attention to the imputed inconsistent statements, that he would or might have had, in case the witness had been examined in court.

I have seen no other case in which this distinction has been taken, whilst in a number of cases decided by the courts of New York, Tennessee, Alabama and Mississippi, the rule has' been held applicable as well, fo depositions as to the oral examinations of witnesses on the stand. Kimball v. Davis, 19 Wend. R. 437; Same Case, affirmed in the Court of Errors, 25 Wend. R. 259; Story v. Saunders, 8 Hump. R. 663; Richmond v. Richmond, 10 Yerg. R. 343; Howell v. Reynolds, 12 Alab. R. 128; Sawyer v. Sawyer, Walk. Ch. R. 48. And in the case of Conrad v. Guffey, 16 How. *Sup. Ct. R. 38, recently decided by the Supreme court of the United States, the authorities are fully examined and reviewed in the arguments of counsel and in the opinion of the court delivered by Justice McEean.

The effort there was to discredit a witness, who had given a deposition under a commission; by proof of antecedent contradictory statements; and the court were unanimous in the opinion, that as the witness had not been interrogated as to those statements when he was examined, the proof was not admissible. And the court quotes with approbation the opinion of the Supreme court of New York in the case of Kimball v. Davis, just cited, holding that where the imputed contradictory statements are alleged to have been made since the taking of the deposition, the adverse party can avail himself of such statements only by taking out a second commission.

The rule, we are told in Greenleaf on Evidence 579, proceeds from a sense of justice to the witness; for as the direct tendency of the evidence is to impeach his veracity, common justice requires that by first calling his attention to the subject, he should have an opportunity to recollect the facts, and if necessary to correct the statement already given, as well as by a re-examination to explain the nature, circumstances, meaning and design of what he is proved elsewhere to have said. These, reasons, it is obvious, apply just as forcibly to depositions as to oral examinations in court. And indeed there are considerations which urge the application of the rule to the case of an impeachment of a witness who has given his testimony in the form of a deposition, which may not arise in an effort to discredit a witness who has been examined in court. In the latter case the witness usually remains in or about the court till the trial is concluded; and if an assault is made upon him by proof of inconsistent *statements, he might, even before the adoption of the rule requiring him to be first examined as to such statements, . be recalled and re-examined by the party in whose favor he had testified; and he may thus have an opportunity of repelling or explaining away the force of the assault: Whereas the witnesss whose deposition has been taken is usually absent from the scene of the trial, and has no shield against attacks on his veracity other than that provided by the rule. And as was very justly said by Chief Justice Nelson in Kim-ball v. Davis, in the absence of such a rule, strong temptations would exist for tampering with witnesses, and for perverting or manufacturing conversations after the taking of the depositions, and when explanations would be impossible.

Upon the whole, the rule appears to me to be a safe, just and- convenient one; and I can see no good reason for refusing to follow the current of authority, in adopting it as a general rule. Cases may be supposed in which the courts may be strongly called upon to dispense with, or to make exceptions to the rule; and I will not undertake to say that special exigencies may not occasionally arise, requiring the courts to depart from the rule, rather than to sacrifice justice by sternly' adhering to it. The same remark may, however, be justly made in respect to most rules of a like character, and suggests no serious objection to the adoption and observance of the rule in question as a general one.

There are no peculiar considerations calling upon us to exempt this case from the operation of the rule: Eor it appears from the deposition, that the plaintiff’s counsel was not only present at the taking, but exercised on the occasion his privilege of cross-examining the witness. And as it does not appear that any predicate was laid in the course of the examination, for the introduction of proof of the inconsistent declarations *offered on the trial to impeach the witness, the court, I think, did right in refusing to allow such proof to go to the jury.

The fifth bill of exceptions to the course of the court furnishes, I think, no ground of error. The defendants had a right to be present at court, as well as at the taking of the deposition. And it is manifest from the facts set out in the bill of exceptions, that they could not have attended the taking- of the depositions and then have reached the court by the commencement of its session: And the exception to the reading of Gardner’s deposition was, I think, properly sustained.

I have been unable to discover any error in the action of the court, and am for affirming the judgment.

The other judges concurred in the opinion of Daniel, J.

Judgment affirmed.  