#### Cahill, Executor of Quin, v. Pintony.

Argued January ?fh. 1815.

«. Assumpsit* — Damages—Verdict in Excess ot Amount Laid in Declaration — Release.†—Since the act of January 20th, 1801, as explained and amended by that of January 29th, 1805, (see Rev. Code, 2d vol. ch. 29, sect. 5, p. 30, and ch. 57, sect. 2, p. 82.) if the jury, in an action of assumpsit, find for the plaintiff a larger sum than the amount of damages laid in the declaration, with interest from a day fixed in their verdict, the plaintiff may release the surplus beyond that amount, and take judgment for the balance, with interest as aforesaid.

2. Depositions — Notice of Taking — Sufficiency.‡—Notice of taking depositions is not sufficient if given to the attorney at law, in tile absence of the principal from the Commonwealth, but ought to be given to the agent or attorney in fact; or. (if there be none,) by publication in the manner prescribed by law.

See Rev. Code, 1st vol. ch. 141, sect. 17, p. 280.

The appellee brought an action of assumpsit against the appellant, in the County Court of Berkeley, for goods, &c. sold and delivered to James Quin, the testator, and laid the damages in his declaration at three hundred dollars. The defendant pleaded non assumpsit by the testator ; and also that the testator did not assume within twelve months, &c. (c) to which pleas the plaintiff replied generally. In March, *1808, a jury being “elected, tried, and sworn to speak the truth upon the issues joined,” found a general verdict, “for the plaintiff,” for 320 dollars, 98 cents, damages, with interest thereon from the 24th of March, 1804 until paid.(1) The plaintiff, by his attorney, released 20 dollars 98 cents, part of the said damages ; whereupon judgment was entered for 300 dollars, with interest as aforesaid.

On the trial of the cause, the plaintiff offered, as evidence to the jury, the deposition of William Spring ; to the reading of which the defendant’s counsel objected, because the notice was proved to have been delivered to Elisha Boyd, as agent and attorney for the defendant, who was out of the commonwealth ; and it appeared that he was not his agent or attorney in fact, but only his attorney at law, employed in the defence of this suit. The County Court overruled the objection, and suffered the deposition to be read; to which opinion the defendant excepted ; but it was not read in evidence to the jury ; nor were its contents in any way brought to their knowledge ; but the plaintiff withdrew it voluntarily, after the bill of exceptions was signed.

The defendant prayed an appeal, which was granted, “on his giving bond and security for the costs of suit which security he refused to give, alleging, that he, being an executor, ought not to be required to give security. He afterwards obtained a writ of supersedeas from a judge of the general court; assigning, in his petition, three errors in the judgment, viz.

1st. Because the court overruled the objections made by the petitioner’s counsel to the reading of the deposition of William Spring.

2d. Because the judgment is entered for a larger sum than the plaintiff demanded in his declaration : the damages laid in the *174declaration amounting to three hundred dollars only; and the judgment being for that sum, with interest from March 24th, 1804.

*3d. Because the court refused to allow the petitioner to appeal without giving bond and security. (1)

The supersedeas .was awarded, but the judgment afterwards affirmed ; whereupon the plaintiff in error appealed to this court.

Wickham, for the appellant.

Williams and Wm. Hay, junr. for the appellee.

*

Assumpsit. — See monographic *note*on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.

†

Damages — Verdict in Excess of Amount Laid in Declaration. — Greater damages cannot be recovered than are declared for and laid in the conclusion *of*the declaration, but the restriction is confined to the amount of damages — the principal of the recovery — and does not affect the interest that may be allowed thereon by the jury. Ga. Home Ins. Co. v. Goode. 95 Va. 753, 30 S. E. Rep. 336, citing principal case as its authority.

‡

Depositions — Notice of Taking — Sufficiency.—See monographic *note*on “Depositions” appended to h'ield v. Brown, 21 Gratt. 71. The principal case is cited on this subject in Humphreys v. West, 3 Hand., 520.

(c)

 See Rev. Code, 1st vol. ch. 76, sect. 7, p. 108.

(1)

 Note. See Garland v. Bugg. 1 H. & M. 375.

(1)

 Note. See Sadler’s Executors and Legatees v. Green, 1 H. & M. 27.

JÜDGL ROAN1)

informed the counsel (after the court had inspected the record,) that, this being a doubtful case upon the record, a copy of the minutes of the County Court should be had ; and if that shewed the memorandum of the withdrawal of Spring’s deposition to have been taken from those minutes, and, consequently, an act of the court, and not of the clerk, the judgment would be affirmed, and otherwise reversed for error in admitting that deposition. The copy of the minutes was accordingly procured ; from which it appeared, that the plaintiff’s withdrawing Spring’s deposition, as aforesaid, was noted therein ; whereupon, (March 13th, 1815,) the judgment was affirmed.