Jackson, ex dem. Potter & Calvin, against Bailey, 2 Johns. 17

Thompson, J. It seems to be well settled, and indeed, is not denied by the plaintiff’s counsel, that where a person who gave evidence on a former trial, between the same parties, in the usual and ordinary course of proceedings jn courts of justice, be dead, upon due proof of such trial, and the death of the witness, it is competent to prove what such witness had formerly sworn- But it is said, that this rule ought not to be extended to téstimony taken before the Onondaga commissioners. 1 am unable however to discover any substan-*iftI reason f°r the distinction.

These commissioners were duly constituted a tribunal, to hear and determine disputes, relative to the very land in question, and to administer an oath to witnesses. Oportunity was given for cross-examining witnesses ; and it appears that the title now in question, was actually litigated before the commissioners. I understand it to be admitted by the case, that a trial was finding at the time the witnesses were sworn, and that no objection was made respecting the mode of proving, that such trial was pending. The objection only went to the admissibility of proof, as to what the witnesses had sworn.

What a deceased witness testified on a former trial, is only to be ascertained by the testimony of some person present, who was under circumstances to know and remember his evidence, no records being kept of what witnesses swear in courts of law. This species of evidence is admitted, eoc necessitate, and must be left to the sound discretion of a jury, under the direction of the court, to give it such weight as it merits.

The general rule is, that when any matter, sworn at a'former trial, is given in evidence, it must be between the same parties, otherwise, no opportunity would be given for cross-examining the witness. The present case falls strictly within this rule. But even the want of an opportunity for cross-examination, has not been deemed sufficient to exclude this kind of evidence.

For it has been ruled, that if witnesses who were examined on a coroner’s inquest, be dead, or beyond sea, their depositions may be read ; for the coroner is an officer, on behalf the public, to make inquiry about the matters within his jurisdiction ; and therefore the law will presume the depositions before him, to be fairly and impartially taken. (1 Lev. 180, Buller, N. P. 224. My opinion, therefore, is, that the testimony offered was competent, and ought to have been received, and that a new trial must be awarded, with costs to abide the event. Kent, C. J.

Spences, J. and Tompkins, J. concurrej. 1 Strange 162. 3 Burr 1255. 2 Lord Raym. 1166. 2 P. Wms. 563. 2 Shower 47. Lit. Ab. 765.