
    *Blincoe v. Berkeley.
    [Friday, November 9th, 1798.]
    Deposition of Witness Resident in Another State— Failure to Give Notice — Effect.—It is error to permit the deposition of a witness, resident in Maryland, which hah been taken under a commission, issued without notice of the intended application for it.
    Same-Same — When Appearance No Waiver of Objection. — in such a case, the appearance of the adverse party at the taking of the deposition, is no waiver of the objection.
    Replevin — Double Rent — Quaere.—If the defendant prays a retorno habendo in replevin, he can claim judgment for double rent ?
    In Replevin, the defendant claimed cognizance as bailiff of William Bane, senr. for 1081. 13s. 2d. rent, due on the first day of January, 1793, and that he entered and took the goods and chattels as a distress for the same; and concludes thus: “wherefore, he prays judgment, and a return of the said goods and chattels to be adjudged to him, together with his costs and damages, according to the form of the statute in that case made and provided.” Replication, 1. That the plaintiff had nothing in the premises; 2. No rent arrear, and issue; 3. No demise in manner and form as'in the cognizance set forth. Rejoinder to the first plea sets forth the title of Bane. Issue ; and a prayer for a return of the goods and chattels, together with costs and damages, according to the form of the act of Assembly in that case made and provided. Rejoinder to the third plea, that the demise in the cognizance was made in manner and form as in the cognizance is set forth. Issue thereon; and a prayer for a return of the goods and chattels with costs and damages, according to the form of the act of Assembly.
    Afterwards, the rejoinders to the first and third pleas were withdrawn, by consent, and a general demurrer put in by the defendant.
    At a subsequent Court, leave is given to withdraw the demurrer to the plaintiff’s first plea. At another Court, he had leave to withdraw the demurrer to the third plea, also. Whereupon, to the plaintiff’s first plea, the defendant rejoins an estate in William Bane, sufficient to support the cognizance, and justify the taking. Issue; and a prayer for return of the goods and chattels, with his damages and costs, according to the form of the act of Assembly.
    Rejoinder to the third plea, that the 406 demise was *made in the manner and form in the cognizance set forth. Issue; and a prayer for return of the goods and chattels, with damages and costs according to the act of Assembly.
    ■ The jury found a verdict in these words: “We, of the jurjr, find for the defendant, in the three several issues joined in this cause. We also find, arrears of rent, amounting to 1081. 13s. 4d.”
    The opinion of the Court was taken, whether judgment should be rendered for the verdict, or should be reduced by the scale of depreciation? but the Court having divided in opinion, they decided that the motion fell; and that judgment might be entered for the defendant, that he should recover his costs. Whereupon, the defendant prayed a return of the goods and chattels, which was awarded.
    Upon the trial of the cause, the plaintiff filed a bill of exceptions to the Court’s, opinion, which stated, that the defendant offered the deposition of a witness, taken in Maryland, the order for taking which was made by one Hardage Bane, no party to the suit. That the plaintiff had no-notice of the application to the Court for the commission to take the deposition. That the witness aforesaid, was a party to the contract on which the rent is claimed; that, the commission issued blank, and there is no evidence that those who executed it were Justices of the Peace, in Maryland. That, therefore, the plaintiff objected to the deposition’s going in evidence to the jury; but, that- he was overruled by the Court, and the deposition permitted to go to the jury.
    The plaintiff appealed from this judgment to the District Court, where the judgment of the County Court was affirmed; from which judgment of affirmance, the plaintiff appealed to this Court.
    Wickham, for the appellant.
    The bill of exceptions shews, that a deposition taken in Maryland, under a commission issued in blank, and granted 407 *by the Court without notice to the adverse party, was permitted to be read at the trial of the cause, although objected to by the appellant: whereas, the act of Assembly expressly requires that notice shall be given. The words of the act are, that “the party applying for a commission in such cases, shall give the adverse party, his attorney or agent, ten days’ previous notice of the day of his intended application to the Court, without which, no commission shall issue.” R. C. [c. 191, l 13, ed. 1803]. Which words are so strong, that no reasoning can make the objection clearer than merely adverting to the act of Assembly itself does.
    Whether the deposition was material or not, is of no importance in the present enquiry ; for, the weight of the testimony was a question f.or the jury, and not for the Court to decide. It was held by the Court, in Keel and Roberts v. Herbert’s ex’rs, 1 Wash. 203, that the District Court did wrong in directing the jury, that the evidence w*as sufficient to maintain the issue; that being a question which belonged exclusively to the jury, and ought to have been left with them, without any such declaration or direction; unless the Court, (by a demurrer to the evidence having been filed,) had been compelled to decide upon it. So, those eases in this Court, where it has-been determined that the plaintiff could not be non-suited by the Court without his own consent, have all been determined upon the same- principle; namely, that it was the province of the jury to decide upon the fact, and the weight of the testimony, and that the Court could only determine whether the evidence, such as it was, should be submitted to their consideration. It follows, therefore, that it was not important whether the deposition was material or not. Because the Court ought not to have suffered it to be read, unless the forms required by the law, had been observed in obtaining it.
    Besides, King, being assignor of the reversion', was liable to the assignee, 408 if the rent was not recovered; *and, therefore, was interested in the event of the suit, which rendered him an incompetent witness; and, consequently, upon that ground, his deposition ought to have been rejected.
    But the judgment is erroneous, for another reason. The Court ought to have directed the verdict to be reduced by the scale of depreciation. For, it is one of those cases which was contemplated by the act of Assembly, as the lease bears date in 1777, during the existence of paper money; and, therefore, is subject to the scale.
    The Court having been divided on the question, they should have continued the cause: for, the same rule did not apply, as upon a division on a question relative to the introduction of evidence; because, the judgment is the act of the whole, or of a majority of the Court, and, therefore, the concurrence of the'whole, or of a majority, is requisite to the rendition of it.
    Randolph, for the appellee.
    As to the objection concerning the interest of the witness, there is no foundation for it. Because, although he was interested at the time of the application for a commission, yet his interest might have ceased before the trial.. But, here, is an express agreement against any warranty, which destroys all idea of interest; and, therefore, his competency could not be impeached.
    The objection, that no notice was given of the intended application for a commission, will not prevail; for, the Justices have certified, that they took the deposition in Blincoe’s presence; arid it does not appear that he took any exception. This tended to deceive his adversary, and should be considered as a waiver of prior irregularities, if any.
    But, for another reason, this objection will not prevail.
    The testimony was unimportant and irrelevant. On nil debet, the defendant cannot give in evidence, that the plaintiff 409 had nothing in the ^tenements demised. [Trevivan v. Lawrance et al. 1 Salk. 276;] Buller’s N. P. 170. So, that his testimony being immaterial, the admission of it was of no consequence; and, therefore, it will not vitiate the judgment.
    Again, the witness might speak as to any points not growing out of the deed; and 3 T. R. 308, [Bell v. Harwood,] shews, that where the verdict cannot be given in evidence for or against him, the witness is competent.
    The question was only, whether the deposition was admissible or not; and the Court had a right to decide upon that: Which answers the objection, as to the right of the jury to decide upon the weight of the testimony.
    
    With respect to the point relative to the scale of depreciation, as the verdict was found in 1795, it must be intended that the jury meant specie. For, the right to reduce the debt by the scale, is common to the Court and jury; and, the Court has decided it alternatively. Besides, it appears by the testimony, that the lease related to a contract in 1775; and, therefore, was anterior to 1777: Which takes it out of the scale.
    The Court were divided on the motion to reduce the verdict, and not upon the motion to have the judgment entered up. Of course, when the motion fell, it was right to enter the judgment. But, it should have been for double rent.
    Wickham, in reply.
    The ten days’ notice were absolutely necessary; and, the Court could not dispense with them. Nor did the presence of the appellant at the taking of the deposition alter the case. For, the commission being in blank, and the authority given by the Court, when there had been no previous notice to the adverse part3r of the intended application, utterly void, the attendance of the party, at the performance of a void act, could not prejudice him.
    The witness was interested; because, the warrant extended to the rent, which 410 passed by the *grant of the reversion. The case from Bull, was a debt upon an indenture; where nil debet only goes to the debt, and not to the execution of the instrument. But, here it was otherwise : for one of the issues is, that there was no demise.
    It is insisted, that the deposition was not material; and yet the appellee’s counsel relies upon it, to shew that it was a specie contract: Which certainly proves that it was important.
    But, I still rely upon the argument, that the Court could not decide upon the weight of the evidence. The party offers evidence at his peril; and, the Court only decides upon the legality of introducing it. Here, it was the business of the Court to determine on the competency of the witness; and, it belonged to the jury to determine on his credibility, and the force of his evidence.
    As to the point concerning the scale of depreciation; the act requires the Clerk to apply the scale of course, unless some proper objection is shewn. The verdict of the jury should be understood to relate to the sum stated in the recognizance; which refers to the lease in 1777. Of course, it was liable to the scale. Watson v. Alexander, 1 Wash. 340.
    The defendant was not entitled to a judgment for double rent; because, he prayed the judgment at common law, for a return of the goods, and therefore cannot except to it. He might possibly have had his reasons for the course he took, in order to prevent the operation of mortgages or prior executions.
    Randolph. We may now insist upon a judgment for double rent; for, it does not appear, that we did not do so, in the Court below; the goods are only a security for their value; and, therefore, we may distrain again for the balance.
    Wickham. It is stated in the record, that the defendant prayed a return of the goods; which is a judgment at common law, 411 and not upon the *statute. Now, if a man takes the former, he cannot have the latter; and e converso. If the defendant prays for no particular judgment, there the Court will render judgment for the double rent; but, where he prays a specific restitution, he thereby insists upon the judgment at common law; and waives that upon the act of Assembly. He may, as Mr. Randolph says, distrain again ; but, that surely, can never give him a title to both judgments at once.
    
      
      Depositions of Witness Resident in Another State-Failure to Give Notice to Adverse Party — Admissibility. —For the propositionthatthe deposition of awitness resident in another state or country taken without notice to the adverse party is inadmissible, the principal case is cited and approved in Lewis v. Bacon, 3 H. & M. 101; Clay v. Williams, 2 Munf. 123. The principal case is distinguished in Thornton v. Cor-bin, 3 Call 388. See generally, monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
      Replevin. — See Nicolson v. Hancock, 4 H. & M. 501, citing principal case and Maxwell v. Light, 1 Call 117; Tuberville v. Self, 2Wash. 71. See monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.
    
   ROANE, Judge.

This is an action of replevin ; and, the defendant having claimed cognizance as bailiff of W. Bane, senr. the parties were at issue on the three pleas, mentioned in the proceedings.

At the trial, the defendant offered in evidence, as appears by the bills of exceptions, the deposition of T. King; and, although it was alleged, amongst other things, that it was taken by an ordinary commission, not granted on notice to the adverse party, {notwithstanding the examination was to be in Maryland;) and not directed to commissioners, selected pursuant to the act of Assembly, yet the deposition was permitted to go in evidence to the jury; and, the question is, whether this decision upon this point was legal or not?

The weight of the testimony, is a foreign enquiry on the question. A suitor may, with leave of the Court, submit testimony to the jury, which the Court may think superfluous or of no weight; the address relative to the influence of testimony, being to the jury and not to the Court; and the only province of the latter, in cases of this kind, is to prevent illegal testimony being exhibited to the jury.

If a Court can admit, as testimony, a deposition taken in another State, in a manner unauthorised by law, I see nothing to prevent them from admitting a witness to testify without being sworn, or a deposition made within the State, not sworn to; and taken before private persons; the power of the Court in each instance is the same.

*In none of these cases, will it cure the defect of legal requisites and solemnities, that the Court shall be of opinion, that the weight of the testimony was as nothing; for, the jury might have been of a different opinion; and, that impression might have produced the verdict. So, that an after-opinion of the Court, upon a point not generally before them, on the question of the admission of a deposition or witness, (I mean the contents of the one, or the information to be given by the other,) is to cure an opinion of that Court clearly illegal, without such reference; and to justify the introduction to the jury of testimony not authenticated, in the manner required by law. In other words, the doctrine is, that, when the Court shall be of opinion, that the testimony has no weight, the solemnities required by law, may be dispensed with; and e converso, they shall be adhered to ! Although, it is clear, that the jury are the exclusive judges of the weight of testimony as operating on their minds; and, that a Court, on a question to admit the deposition or a witness, never reads the one or examines the other, with a view to decide upon its influence.

This doctrine is explicitly avowed by the Court in Ross v. Gill et ux., 1 Wash. 90; where it is laid down, that ‘ ‘if the Court admit improper testimony, an exception may be taken to their opinion; but, if the question depends upon the weight of testimony, the jury, and not the Court, are exclusively and uncontroulably the Judges.” That is, as applied to this case, as the Court below, admitted improper testimony, it cannot be cured by any opinion the Court may entertain, (as they are not the proper Judges,) with respect to the weight of the testimony given in the cause. This determination is supposed to be completely decisive of this point.

I suppose the counsel for the appellees was scarcely serious in arguing, that the appearance of the appellant, before the Justices in Maryland, cured the defect in awarding the commission. The attendance was produced by fear, that his objec413 tions *to the legality of the testimony might not avail him. In which case, it would be material for him to see, that the deposition was as little adverse to him as possible. But, it is not shewn, that he cross-examined the witness, or was there otherwise than casually.

In this view of the case it is impossible to sustain a verdict, which may have been founded on this illegal testimony; and as this testimony is clearly relative to the subject in dispute, it is impossible for this Court to say, if the3T had power to judge, that it had no influence with the jury. Besides, if we break through the principles and rules that have been wisely established, in respect to the present question, in this instance, it is not easy to say how far the precedent may carry us.

Upon the whole, the verdict and judgment of the County Court should have been set aside by the District Court, in consequence of the admission of this testimony, which we must now do. On the next trial, the plaintiff in replevin may be better prepared to discuss and give evidence relative to the point, whether the sum found due should be scaled or not; and the defendant may rectify his judgment (if right,) in respect of double damages. But, I have not considered either of these questions, so as to be able to decide them, or any others made b3r the counsel, except that which is above stated as the ground of my opinion.

Therefore, I am for reversing the judgment of the District Court: (because of the admission of the deposition of T. King, in the proceedings mentioned,) and awarding a new trial of the issues.

FLEMING, Judge.

Concurred.

CARRINGTON, Judge. It was certainly improper to permit the deposition to be read. The act of Assembly is' express, that the adverse party shall have notice of the application for the commission, in order that he may attend and name commissioners or make his objections. But this 414 ^direction of the law not having been pursued, in the present instance, the deposition was clearly not admissible. On that ground, therefore, I concur, that the judgment ought to be reversed; but, I give no opinion as to the other parts of the case.

Judgment reversed.  