#### John Barton v. Alexander Morphis.

' The refuse! by the court to permit a witness to be re-examined, is no ground for a new trial in this court, it being discretionary with the court below to permit it or not.

Trover for a negro slave Lary, tried at Person Spring term, 1833, before Settee, Judge.

The plaintiff proved title to the slave, and the question was as to the conversion by the defendant.

The plaintiff proved by a witness, (Turner,') a confession made by the defendant in a. conversation with a runaway slave named Jack, sufficient to authorise a jury to find that a conversion had been made by the defendant. The credit of Turner was attacked, and to prop and support him the plaintiff introduced several witnesses. The testimony of these witnesses was objected to by the defendant, as being irrelevant and improper, but it was admitted by the court. The witnesses on each side had been separated on the day that they were examined; at 9 o’clock on the evening of that day, both parties stated to the court that their testimony was closed; the court then adjourned until the next day, when a witness by the name of McDaniel, who had been introduced by the defendant on the preceding day, made application to the court to explain his testimony, stating that improper inferences had been drawn from it, and he was afraid it was misunderstood. This application was made before any remarks had been made on his testimony by counsel; the court refused to hear him. The defendant had, on the day of the examination of the witnesses, offered to read a deposition of the witness, Turner, which had been taken de bene esse for the purpose of discrediting him, by showing variances between that and his present statements. The court,said it might be read; but the defendant proposed to read such parts only, as would be legally competent, if offered by the plaintiff in chief. The court refused to let it be read in that manner, and stated that if part was read the whole must be read.— After this opinion was given by the court, the defendant’s *241counsel declined reading it altogether The plaintiff of-ferred to read the deposition of Betsey Brazier, which had been taken de lene esse, after legal notice had been given and the defendant had cross examined. To lay a foundation for reading the deposition, he proved by the brother of the witness that he had seen her the day before he set out to court, that she was very far advanced in pregnancy,and at the time he was speaking, he-supposed it probable she had just been delivered. The defendant objected to the reading of the deposition, but the court permitted it to be read. There was a verdict for the plaintiff; the defendant moved for a new trial, 1st, because the court bad permitted the plaintiff to introduce improper evidence, 2dly, because the court rejected proper and legal evidence. The motion was overruled, and judgment rendered for the plaintiff, from which the defendant appealed.

TV. A. Graham and Nash for the plaintiff.

Winston for the defendant.

DaNieu, Judge.

After stating the case, proceeded to deliver the opinion of the court.

After the credit of the witness, Turner, was attacked, it became material and necessary for the plaintiff to show that there was an intimacy between the defendant and the runaway slave Jack, about the time deposed to by Turner, in order that the jury might draw the inference that such á conversation had taken place as that stated by Turner. For this purpose the witnesses Bradshaw, Jones, Watts and T/io mas were introduced. I think Bradshaw’s evidence was admissible for the purpose of introducing and explaining the conduct and behaviour of the defendant, when the charge was made that he had carried off Barton’s slave, arid also for the purpose of proving his answer on that occasion. (1 Stark 50.)

The testimony of Jones offered to show that the defendant used just such language as might be expected of a man who was harboring a runaway. The words spoken and manner of speaking them to Jones by the defendant, was a circumstance which the plaintiff might *242link with other circumstances to show an intimacy between Jack and the defendant.

A party offering the deposition of a witness examined in the causo, for the purpose of contradicting him, will not bo permitted to read part only of the deposition,but ifhointroduces it, must read the whole.

Watts proved that the defendant admitted that he had purchased Jack for the price of $ ZOO, in January, 1829. His evidence wentto support Turner, who had deposed that in the conversation which he overheard with Jack and the defendant, the latter said he would buy him out of the woods.

The evidence of Thomas was material to show an intimacy between Jack and the defendant. The night the party went to apprehend Jack, the defendant left the party and again rejoined them, when he told the company that lie had seen Jack, and that they had agreed to meet •at the school house, where he had promised to pay him some money. At 10 o’clock the defendant, Tliornas and Jack came to the school house, when after some management, Jack was arrested by the rest of the company. I think this evidence was in point to prove an intimacy.

2dly. The refusal by the court to permit McDaniel to be re-examined, was no ground fora new trial. It was discretionary in the court to permit it or not, and the defendant’s counsel now abandons this point in his case.

Sdly. Did the court err in refusing to let the deposition which Turner-had given, be read in the manner requested by the defendant’s counsel ? The deposition was no evidence as to the main question in the cause, viz : the conversion of the property, because Turner was there to-testify orally, nor could the plaintiff have read that part of it in chief, if Turner had not been present, which relates to what the slave Jack informed the witness the defendant had done. But when the defendant offered it as a written declaration made by the witness upon the same subject matter, for the limited purpose of impeaching the witness, by showing a material variance between the written deposition and his evidence given on the trial; then all the writing, which would have had a tendency to show that the witness was consistent or inconsistent, should have been read and not parts of it._ The deposition has been sent up as apart of the case; it *243appears that Turner was consistent as to the time he first saw Jack, and the conversation he then had with him,— _ lie is consistent as to the tunc that he, Stewart and Brad-sluiw went to the out house of the defendant, and the conversation that then took place between Jack and the defendant. The only apparent inconsistency in the- two statements, is in the inducement which prompted him to go at the time he did to the out house of the defendant. In his statement before the court, he said that it was from information imparted to him when he first saw Jack, (viz. September, 1827,) he was induced to go with Stewart and Bradshaw a certain night in December 1827 to the house of the defendant, to observe an interview between him and Jack.

In his deposition, ( which was taken when he was ves ry sick,) he stated that lie saw Jack in the fall of the year 1827 — that he was then a runaway — that he made certain disclosures to him, relative to the conduct of the defendant, in sending away the slave of the plaintiff, and said that a negro by the name of Joe, could give information, which would detect the defendant at any time.— Turner tells Bradshaw and Stewart what he had learned, and it was agreed between them, that they would find out if there was any truth in the account given by Jack. After they had formed that determination, Stewart told the witness, that Thompson’s Larry had informed said Stewart, that the defendant and Jack could be caught at night, at a little out-liouse in the defendant’s fields — that in consequence of this information from- Thompson’s negro, they then agreed to go to said house at the time specified, and did go. When they got there, he saw and heard, what he had related in court. It must be vememr bered, that the deposition of the witness was taken when he was. very sick, and, in the nature of things, it cannot be expectedj that the same degree of accuracy as to colr lateral circumstances, will be observed, as when the witness was in full health, and in the full possession of his mental faculties. The information which the witness got from Stewart, ( as stated.in the deposition,) was the. immediate cause of his going to t|ie out-house of fhe dq-*244fondant, at the time he did. Yet, from reading that dc-position, it appears to me very certain, that the mediate caHge was what Jack had disclosed to him in 1827. I think, all the deposition was pertinent to the ascertainment of the limited fact, whether Turner had made a material variance in his different statements of the same case, or not. The defendant, therefore, had no right to read a part only.

The deposition ef a woman^far nancean™ who, it was proved on hahly just been de within’ iheTphit of the act of 1803, and is admissible,

The plaintiff offered to read the deposition of Betsey jjra%ier. It had been taken de bene esse, and to lay a foundation for reading it, he proved by her brother that ]10 Saw her the day before ho set out to court — that she was lar advanced m pregnancy, and at the time he was sPea^i11S> he supposed it probable that she had been de-Iiveml. The reading of the deposition was objected to, hut admitted by the court. Was there any error in this? The defendant contends, that the cause shewn would have been very good for a continuance of the suit; but it was not sufficient to authorize the reading the deposition. The act of 1777 declares, that where the witness shall be under the necessity of leaving the State, before such cause is to be tried, or before the cause is at issue, the deposition may be taken and received as legal evidence. The act of 1803, authorizes the depositions of witnesses, who are in a dangerous state of health, or about to leave the State, to be taken and received as legal evidence. The object of these acts, was both to expedite, and insure, the correct administration of justice. The reception of the deposition in evidence, was in conformity to the general practice, and is certainly within the-spirit of the act of 1803. I perceive no grounds for a new trial, on any of the points taken by the defendant.

Per Curiam — -Judgment affirmed.