
    Woodward v. Woodson’s Heirs.
    Decided, Nov. 24th, 1818.
    i. Instructions — Special Verdict. — It Is not error for the Court to refuse to Instruct the Jury, after being sworn, and before evidence introduced, to render a special verdict.
    3. Evidence — Deposition oi Persons under Whom Party Ottering it Claims. — The deposition of a person, ■under whom the party claims in whose favour it is offered, is not admissible as evidence, unless It appear from the Deeds that no recourse can be had against the witness incase of eviction; and this though a release to the witness be executed by such party, before the deposition is read to the Jury, but after it was taken; and though, at a former trial of the cause, before the deposition was taken, a release was 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 eyent, against the witness on account of the subject in controversy: the necessity of which release from that person was at that time agreed to be waived by the opposite party.
    On the trial of a Writ of Right brought by the appellees against the appellant in the County Court of Goochland, the de-mandants by their Counsel moved the Court to instruct the Jury, after being sworn, and before evidence was introduced, to render a special verdict in the cause; which motion being overruled, they filed a bill of exceptions.
    The defendant offered in evidence the deposition of Joseph Payne, which had been taken by a Commission, saving the right of excepting to his competency; to which evidence ihe demandants objected, because the “said deponent was one of the persons under whom the defendant pretended to claim ; whereupon the defendant released any claim which he might or could have against the said deponent on account of any interest he has or had in the land in controversy in this action; it being also remembered by the Court, that at a former trial of this suit, and betore the taking of the said deposition, Smith Payne, of whom the defendant purchased, and under whom he immediately claims, tendered in the presence of the Court a release of all claim which *he, said Smith Payne, might have in any event against the said deponent on account of the land in controversy ; the necessity of which release from the said Smith Payne to the said deponent was agreed to be waived by the de-mandants themselves; it appearing, also, that the said deponent had, about twenty-seven years ago, purchased part of the land in controversy, of the said Smith Payne as executor of his father John Payne deceased, 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 de-mandants 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 direct the Jury to render a special verdict, when moved so to do by the appellants:” the verdict was ordered to be set aside, and the cause remanded for a new trial: from which judgment the defendant appealed.
    Call for the appellant.
    Beigh for the appellees.
    
      
      See monographiciiofe on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
    
    
      
      See monographic note on “Evidence” appended to Lee v. Tapscott. 2 Wash. 276; monographic note on "Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
   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 bis 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 was examined. Both judgments are therefore reversed; *and the cause is remanded, with directions 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 irs case of eviction.  