
    *Tayloe v. Smith.
    January Term, 1854,
    Richmond.
    1. Appellate Practice — Affidavit That Witness Incapable of Attending: Court — Objection—Waiver.—The affidavit of a witness taken before a justice of the peace, that from his agre and infirmities he was unable to attend the court without endangering' his life, not having- been obj ected to in the court below for want of notice, that objection cannot be made in the appellate court.
    2. Evidence — Affidavit — Deposition De Bene Esse.— Such an affidavit taken eight days before a cause is called for trial, is sufficient to authorize the deposition of the witness, which had been taken de bene esse, to be read as evidence.
    This was an action of ejectment in the Circuit court of Chesterfield by William H. Tayloe and others, the heirs of John Tay-loe, against Smith. On the trial of the cause the plaintiffs offered in evidence the deposition of Archibald Freeland taken de bene esse; and to account for the absence of the witness who lived in the county of Chesterfield some miles from the courthouse, they offered his affidavit taken before a justice of the peace, in which he stated that he was in the ninetieth year of his age, extremely enfeebled from the effects of continued disease and great age; that he was unable to take any other than the most moderate exercise without serious risk; and that he did not believe that he could without probable danger to his life, attend Chesterfield court to give his testimony in this case; nor had he reason to hope he would be in a better condition at any future time. This affidavit was made eight days before the deposition was offered in evidence. The defendants objected to the introduction of the deposition as evidence, ’and the court sustained the objection ; and the plaintiffs excepted. There was a verdict and judgment for the defendant: *And William H. Tayloe then applied to this court for a super-sedeas, which was allowed.
    Grattan, for the appellant.
    Day, for the appellee.
   LEE, J.,

delivered the opinion of the court:

The court is of opinion that the affidavit of the witness Archibald Freeman having been introduced and read to the court upon the question whether the deposition of the witness previously taken should be permitted to be read in evidence to the jury, without objection on the part of the defendant, that the same had been taken without notice, such objection must be regarded as having been waived; and the court therefore deems it unnecessary to express any opinion upon the question whether if formally made it would have served to exclude the said affidavit from being read and considered by the court upon the question aforesaid.

And the court is further of opinion, in conformity to the decisions of this court in the cases of Pollard’s heirs v. Lively, 2 Gratt. 216, and Nuckols’ adm’r v. Jones, 8 Gratt. 267, that where the deposition of an absent witness is offered to be read in evidence upon the trial of an action at law, the evidence of the witness himself touching his failure or inability to attend the court, and the cause thereof, may properly be heard and considered, and may of itself furnish sufficient grounds for admitting the deposition in question.

And it appearing from the affidavit of the said Archibald Preeland, taken about eight days before the trial, that he was then in the ninetieth year of his age, extremely enfeebled from the effects of age and continued disease, that he was unable to take any other than the most moderate exercise without serious risk, and that he could not as he believed, attend the session *of the court to give his testimony in person without probable danger to his life, nor had he any reason to hope that he would be in a better condition at any future time, the courtis of opinion that the absence of the witness was sufficiently accounted for, and that the objection to the reading of his deposition upon the ground that the witness appeared to be still in life and residing in the same county in which the trial was had, should not have prevailed.

The court is therefore of opinion that the Circuit court erred in excluding the said deposition from the jury; and that the said judgment be reversed, and the caitse remanded to said court fora new trial to be had therein, upon which, if the plaintiff shall again offer the said deposition, and the absence of the witness shall be then accounted for in the same or a similar manner as upon the former trial, or in any other manner in law equally sufficient, the court shall permit the same to be read in evidence to the jury, unless some objection shall then be made other than that herein declared to be insufficient, and which shall be found good and sufficient in law to exclude the same or some part thereof from being admitted in evidence as aforesaid.

Judgment reversed.  