
    Chaney v. Saunders.
    Wednesday, Oct. 2d, 1811.
    
      i. Appellate Practice -Reversal of Judgment — Evidence Contradictory. — Where the evidence spread on the record is contradictory, and the point in dispute depends on the credibility of witnesses, the Appellate Court (not haying the witnesses personally before it) ought not to reverse the judgment of that court which had lights, (from the manner of giving in the testimony, and other extraneous circumstances,) which the Superior Court, in its appellate character, does not possess.
    a. Depositions - Notice of Taking — Sufficiency.  — if two actions be pending between the same parties, and in the same court, quiere, whether a deposition, taken by virtue of a notice in which the particular action is not distinctly specified, can be read as evidence in either action?
    3. Same -Same- Time. — If the time appointed for taking a deposition “be between the hours of twelve and one;” quaere, whether it can be read upon a certificate stating, merely, that it is taken “after 12 o’clock?” See Bllncoe v. Berkeley, ICall, 405, and Marshallv. Frishie, 1 Munf. 247.
    At the trial of an action of trespass, in the County Court of Wythe, on behalf of Stephen Saunders against Hezekiah Chaney, the plaintiff, to support the issue on his part, attempted to introduce the deposition of a certain John Rose, to which the counsel for the defendant objected, 1st. “Because there appeared two *suits on the docket, ready for trial, brought by the plaintiff against the defendant; and it did not appear that the defendant (who resided at the distance of fifty miles from the place of taking the deposition) had notice in which action-the evidence was to be read; and, 2dly, Because the notice stated that the deposition was to be taken at Abingdon in the court house, in Mr. Russell’s room, between the hours of twelve and one in the afternoon, and the deposition stated it to have been taken in the courthouse of Washington County after the hour of twelve o’clock.” The court overruled these objections; whereupon the defendant excepted, and a bill of exceptions was signed and sealed.
    A further objection to the reading of the deposition was then taken, on the ground that Nicholas Smith, the maternal grandfather of the said John Rose was a negro. A number of witnesses were introduced to support and repel this objection, and the whole of their testimony spread on the record; on considering which, the court refused to permit the reading of the deposition. The plaintiff then excepted, and his bill of exceptions was signed and sealed. A verdict was found, and judgment entered for the defendant, which, upon an appeal to the District Court, was reversed, and the cause, by assent of parties, retained there for a new trial. In the District Court, (the original papers in the cause having been brought up by a writ' of subpoena duces tecum,) the same deposition was again offered as evidence to the jury. The defendant again objected, and a great variety of viva voce and written testimony was introduced to impugn, or support, the competency of John Rose to be a witness against a white man. The District Court was of opinion that he was a competent witness, and directed the deposition to be read to the jury, who, thereupon, found a verdict for the plaintiff for 450 dollars damages, and judgment was entered accordingly. The defendant appealed to this court.
    Wickham, for the appellant.
    *Hay, for the appellee.
    
      
      Appellate Practice — Reversal of Judgment — Evidence Contradictory. — See the principal cases cited in Brugh v. Shanks, 5 Leigh 649; Vass v. Com., 3 Leigh 794; Green v. Ashby, 6 Leigh 147; Miller v. Insurance Co., 12 W. Va. 127. See further, monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
    
      
      Depositions. — See monographic note on ‘Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
   Wednesday, November 9th, 1811. The president pronounced the following opinion of the court.

“This court, not deciding whether the opinion of the County Court, mentioned in the first bill of exceptions, overruling an exception to the deposition of John Rose, on the ground therein stated, was correct or not, (the effect thereof being done away by the decision stated in the second, by which the deposition aforesaid was withheld from the jury,) and not deciding, absolutely, upon the weight of the evidence stated in the said second bill of exceptions, which (to say the least) is extremely contradictory, and emphatically involved the credibility of the witnesses, is of opinio» to affirm the decision of the County Court therein contained; that court, in examining the witnesses aforesaid, having had lights, arising from the manner of giving the testimony, and other extraneous circumstances, which neither this court, nor the District Court, in its appellate character, possessed in an equal degree.

“On these grounds, the judgment of the District Court is reversed, and that of the County Court affirmed.”  