#### *Butts v. Blunt and Others.

November, 1822.

Ejectment — Evidence—Admissibility.†—In ej ectment, ■where the lessor is a fictitious person instead of *98the lessee, evidence on the part of the plaintiff, not going to shew a title in the lessor, ought to he excluded.

Same — Same—Effect of Statute of Jeofails. — Although the act of Jeofails, cures any objection of form or substance to the declaration in ej ectment, after issue joined, yet it does not dispense with the rule, that the evidence must be relevant to the issue.

Depositions — Admissibility in Evidence — Witness Unable to Attend.* — Depositions ought not to be admitted in a suit at law, unless it appears by the record in what suit and by what authority they were taken, and that the witness could not attend at the trial.

This was an action of ejectment brought in the county court of Southampton, by Samuel Blunt and others, trustees of the Nottoway Indians, against Daniel Butts, for a messuage and fifty-nine acres and_ a half of land. The declaration laid a demise, from Aaron Burr to the said trustees. An issue was made up on the plea of not guilty. The jury found a verdict for the plaintiffs, and the court rendered judgment accordingly.

At the trial, the defendant excepted to the opinion of the court admitting certain depositions to be read in evidence. There is no commission contained in- the record for taking these depositions. It is not stated whether they were taken in chief, or de bene esse; nor was there any evidence that the witnesses were dead or unable to attend the trial. These depositions go to- prove the general reputation, that the lands in question were Indian lands.

An appeal was taken to the superior court of Southampton, and the cause was afterwards removed to the superior court of Dinwiddie; and that court affirmed the judgment.

From this judgment, the defendant appealed to this court.

*Gilmer, for the appellant.

The depositions were improperly permitted by the county court, to be read in evidence. 1. Because no suit was pending at the time they were taken. They were taken on the 39th March, 1809, and the suit was brought on the 18th June, 1811. 3. There was no' previous affidavit to warrant the issuing of a commission, and there does not appear to have been any commission. 3. There was no notice; for the certificate of it in the caption, of the depositions is not sufficient. 4. The persons who took the depositions do- not appear to have been justices. There is no consent to cure all these errors.

These objections are sustained by the cases of Minnis v. Echols, (a) and Collins v. Lowry. (b) They also shew that depositions in such a case can only be taken de bene esse, unless by consent; and then certain steps must be taken, which have been wholly omitted in the case at bar.

But even if they had been regularly taken, they ought to have been excluded, on account of their matter. They are intended to establish a right to real property by hearsay evidence and general reputation. Even in cases of boundary of old manors, it is necessary to prove occupation; that the witnesses were dead, and in a situation to know the facts, (c) But the right to real property, never was proved by such evidence.

The patent to Simonds Butts, from whom the appellant regularly derives his title,. cannot be impeached in an ejectment. (d)

Leigh, for the appellees.

As to the objections to the irregularity of the depositions, they ought to appear upon the face of the record; *otherwise, they cannot be urged for the first time, in the appellate court. It is incumbent on the party excepting to the opinion, to set forth the alledged error; not on the prevailing party, to shew that the judgment is right. All presumptions are in favor of the judgment of a competent tribunal. _ The preliminary steps in taking depositions, are frequently omitted in records, from the mere circumstance, that no notice was taken of them in the court below; and it would operate as a surprize on a party, to state those objections for the first time, on the appeal.

The objections to the substance of the depositions, cannot be sustained; for it amounts to this, that a person claiming under a previous grant of the commonwealth, made and sanctioned by law, cannot prove that certain lands are within that grant, in opposition to1 a patent for them, obtained one hundred years after the grant. The title of these Indians is distinctly recognized by numerous acts of Assembly; particularly by the acts of August, 1734, February, 1779, November, 1793, and December, 1803. Indian lands were never subject to location.

†

Ejectment — Evidence—Admissibility.—See generally, monographic *note*on "Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172. Tbe principal case is cited in Whittington v. Christian, 2 Rand. 356.

*

Depositions — Admissibility in Evidence — Witness Unable to Attend. — In Lynch v. Thomas. 3 Leigh 685, it is said: “In Collins v. Lowry, 2 Wash. 75, it was decided (and very properly) that hearsay evidence that the deponent has left the country, and has not returned, is not sufficient to authorize the reading his deposition; in Minnis v. Echols, that the service of a subpoena will not do,- but it must be nroved. that the witness is dead, or if living, unable to attend; and in *Butts v. Blunt,*1 *Rand.*255, that depositions ought not to be read in a suit at law, unless it appear that the witness could not attend at the trial. We see, then, both by the statute and the decisions upon it, that to authorize the reading of the deposition, nothing more is necessary than that the witness should be unable to attend; nor is any higher or more cogent proof required to establish this than any other fact.” The principal case is also cited in Steptoe v. Read, 19 Gratt. 7.

See further, monographic *note*on "Depositions” appended to Field v. Brown, 24 Gratt. 74.

(a)

2 H. & M. 31.

(b)

2 Wash.. 75.

(c)

 Phil. Evid. 182-3; Nicholls v. Parker, note 14, East, 331.

(d)

 Witherington v. McDonald. 1 H. & M. 306.

JUDGE BROOKE,

November 28th. — delivered the opinion of the court.

The declaration in this case, avers the lease to have been made by Aaron Burr, to the appellees, and the plea of not guilty, puts his title in issue. Although the act of Jeofails, prohibits any exception of form or substance to the declaration in ejectment, after issue joined, yet the court is of opinion, that it does not dispense with the rule, that the evidence must be relevant to the issue. The depositions objected to in the bill of exceptions, prove nothing in relation to the title of Aaron Burr, the lessor of the plaintiffs; and on that ground were improperly admitted to go in evidence to the jury.

The court is further of opinion, that it not appearing by any thing in the record, *99in what suit or by what authority, *they were taken, nor that the witnesses could not attend at the trial, (and not deciding whether they were proper evidence of boundary) that the county court erred, on that ground also, in permitting them to go to the jury.

The judgments of both courts are therefore reversed, and the cause remanded; the verdict to be set aside, and a new trial to be had.

John G. Crouch filed a bill of injunction in the Richmond chancery court, against Puryear and his wife, McRae and Dorrington, praying that they may be injoined from working any new coal-pit opened since the death of John Ellis, and from removing the coal that has been raised from the said new pit.

The case stated by the bill is this: