
    Ayres P. Merrill vs. Henry H. Bell, Administrator of Thomas Bell, deceased.
    No tribunal has authority to take proof, except in a case before it, or by authority expressly conferred by commission or by statute.
    If conditions which are impossible or insensible be annexed to a contract, they are inoperative and void, and the obligation of the contract remains absolute, if it be not for the doing of an illegal thing ; but if any sense or certainty can be made of the conditions they and the obligation shall all stand.
    Depositions taken in one suit are not admissible as evidence in another, unless both suits are between the same parties, or those who are privies in blood, in estate, or in law.
    B. deposited $ 1235 with M. in trust, to be returned whenever, within two years thereafter, B. would make, before any tribunal having competent jurisdiction therein, good and sufficient proof, satisfactory^to the administrator of E., of the payment by B. on the 15th day of May, 1837, to E. or his duly authorized agent, of the sum of $950, to apply on certain payments to be made by B. to L. in pursuance of certain articles of agreement made and entered into by B. and L., dated January 5th, 1837, whether the same shall appear to have been paid by a note or notes, or in cash: Held, in an action by B. against M. to recover back the $ 1235, that the conditions, so far as they relate to the manner of making the proof and its sufficiency, are inoperative, andB. was entitled to recover if he could prove the payment of the $ 950 to E., or the duly authorized agent of L., without having made any preliminary proof to a tribunal or to E.’s administrator.
    In an action by B. against M., to recover $ 1235, deposited by B. with M., to be returned when B. should prove that he paid E. or his authorized agent, the sum of $950, to apply on certain payments to be made by B. to L. in pursuance of certain articles of agreement made and entered into by B. and L.; B. in order to prove the payment of the $ 950, to E. as agent of L. introduced and read to the jury certain depositions which had been taken in ■ a controversy pending in the probate court between L. and E.’s administrator, to recover money paid by B. to E. for L.: Held, that the depositions having been taken in a case to which B. was not a party, and -M. only a party as the agent of L., were inadmissible to prove the? payment in the suit between B. andM.
    
      Error from the circuit court of Adams county; Hon. Charles C. Cage, judge.
    This was an action of assumpsit brought by Thomas Bell against Ayres P. Merrill, on a writing in these words :
    “ Received of Thomas Bell (on deposit) in trust $1235, which is to be repaid to the said Thomas Bell, without interest, whenever within two years from the date hereof, he, the'said Thomas Bell,, his heirs, executors and administrators, shall make and produce, before any tribunal having competent jurisdiction therein, good and sufficient proof (satisfactory to the administrators of Thomas G. Ellis, deceased,) of the payment by him, the said Thomas Bell, on the 15th day of May, 1837, to the said Thomas G. Ellis, or his agent, duly authorized, of the sum of $950, to apply on certain -payments to be made by the said Thomas Bell to Rene La Roche, in pursuance of certain articles of agreement made and entered into by the said Rene La Roche by his agent and attorney, Thomas G. Ellis, and the said Thomas ■Bell, dated January 5th, 1837, whether the same shall appear to have been paid by a note or notes, or in cash.
    “ Dated October 4, 1841.” (Signed) “A. P. Merrill.”
    Plaintiff first declared for money “had and received,” and subsequently filed an amended declaration containing three special counts on the above writing. Each count begins with a “whereas Merrill made the above writing,” and then sets it out, without any statement of inducement or consideration, declaring upon it as on a promissory note; and then avers that plaintiff did, within the time prescribed, make and produce good and sufficient proof of the payment by him, on the 15th of May, 183?, to an agent of Ellis, of the sum of $950, " to be applied on account of certain payments to be made by said Bell to said Rene La Roche.” It is then alleged that said proof was satisfactory to Dahlyren, one of the administrators of Ellis; that said payment was so made for that purpose, and also that said payment was so made in pursuance of an agreement made by La Roche by Ellis, his agent, and dated 5th January, 1837. It is then alleged that by means of the premises Merrill became liable to pay $1235 on request and so promised to pay. There is no averment of any notice to, nor of any demand upon Merrill. In the first and second special counts this proof is alleged to have been produced before the probate court of Adams county, “ the same being a tribunal of competent jurisdiction for that purpose.” In the third count it is alleged that this proof was so produced before M. Meador, a justice of the peace for Wilkinson county.
    To show that the requisite proof was produced, as required by the receipt of Merrill, plaintiff offered to read the following depositions, taken in a cause in the Adams probate court, to which Rene La Roche and the administrators of Thomas G. Ellis were sole parties, to wit: Deposition of John Philbrick, taken before M. Meador, a justice, on 10th December, 1841. Also deposition of John L. W’all, taken on 15th December, 1841, before L. K. Barber, a justice. Plaintiff then proved that these depositions were taken in said cause by his own attorney, “in compliance with and to conform to the contract sued on in this suit,” and also that they were read in said suit between La Roche and Ellis’s administrators. Plaintiff then introduced an account for money due to Ellis by Bell, for amount of two notes payable to James Quine, and interest thereon, and an order thereunder written by Ellis to Bell to pay the amount to Phil-brick ; also Philbrick’s receipt thereon for $950. Plaintiff proved that this was also used as evidence in said suit between La Roche and Ellis’s administrators. To the admission of the depositions and this account, &c., the defendant objected; the court overruled the objection, and they were read to the jury, and defendant excepted. Defendant then read to the court the petition filed in the probate court, in said case, between La Roche and Ellis’s administrators, and the decree thereon against La Roche, and then requested the court to rule out said depositions of Philbrick and Wall, and said account, &c., on the ground that said probate court had no jurisdiction to try the matters of said petition, and so said proofs were not produced before a court of competent jurisdiction. The court refused to rule out the evidence, and defendant excepted. There was no proof, so far as appears by the record, that any part of this evidence was satisfactory to the administrator^ of Ellis, but, on the contrary, the probate petition and decree thereon, above mentioned, show that this proof was not satisfactory to them; a verdict was found for plaintiff, and defendant brings the case to this court by writ of error.
    
      Van Winkle and Potter, for plaintiff in error,
    cited, Soria v. Planters Bank, 3 How. 46; 1 Saund. R. 32, a. n.; 2 Chit. PI. 360 361, 722; Archb. Civil Plead. 91, 153.
    
      George H. Gordon, for defendant in error,
    cited, Babcock v. Scott et al. 1 How. R. 100.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

Thomas Bell, in his lifetime, brought suit against Merrill, on a receipt, in the following words, to wit: “ Received of Thomas Bell (on deposit) in trust, $1235 which is to be repaid to the said Thomas Bell, without interest, whenever, within two years from the date hereof, he, the said Thomas Bell, his heirs, executors, and administrators, shall make and produce before any tribunal having competent jurisdiction therein, good and sufficient proof, satisfactory to the administrators of Thomas G • Ellis, deceased, of the payment by him, the said Bell, on the 15th day’ of May, 1837, to the said Thomas G. Ellis, or his agent duly authorized, of the sum of $950, to apply on certain payments to be made by the said Thomas Bell to Rene Lsi Roche, in pursuance of certain articles of agreement made and entered into by the said Rene La Roche, by his agent and attorney, Thomas G. Ellis and the said Thomas Bell, dated January the 5th, 1837, whether the same shall appear to have been paid by a note or notes, or in cash. Dated October 4th, 1841. A. P. Merrill.”

The correctness of the decision of the court below depends upon the true purport of this instrument. It is singular and ill-shapen, and cannot be construed without, to some extent, resorting to conjecture as to the state of facts which gave rise to it, and the object the parties had in view. It would seem that a doubt or difference must have existed, whether Bell had previously, to wit, on the 15th of May, 1837, made a payment of $950 to Ellis to be applied as a payment to La Roche on a contract which existed between him and Bell, Ellis having been, at the time, the agent for La Roche; and we may infer from the records that Merrill was the agent of La Roche at the date of this receipt, Ellis in the mean time having died, as we must suppose from the phraseology of the receipt. Bell therefore deposited with Merrill the sum of $1235, to be held until he should make proof of the previous payment; then it was to be repaid to him; or, failing therein, that it was to be applied as a payment. This seems to be the sense of the instrument, and yet the condition on which the money was to be repaid requires that Bell should make proof of payment in a particular way. He was to make and produce before any tribunal having competent jurisdiction therein, good and sufficient proof, (satisfactory to the administrators of Thomas G.’ Ellis, deceased,) of the payment, &c.” The effort to prove performance of this condition constitutes the ground of objection to the proceedings, and it is not a matter of surprise that an attempt to prove a literal performance, should have given rise to difficulties. We cannot see how Bell was to make proof before a tribunal having jurisdiction, as no tribunal has jurisdiction to take proofexcept in a case before it, or by authority expressly conferred by commission or by statute. Bell could not sue to recover back money which he had rightfully paid, nor could La Roche or Ellis’s administrators sue him for money which had been paid ; there was no liability either way. We cannot suppose that either party intended that a suit should be brought merely for the purpose of having the question judicially settled; but even if they had such a proceeding in view, a court of justice cannot be made the mere instrument for ascertaining facts for the satisfaction of parties, and for the purpose of enabling them to perform the conditions of their contracts. But the proof was not only to be good and sufficient, it was to be satisfactory to the administrators of Ellis, who were not bound to be satisfied with anything short of proof taken before a competent tribunal, nor were they bound to be even satisfied with that. Bell had no power to compel them to be satisfied; the matter was left entirely at their discretion. We' must therefore regard the condition, so far as it relates to the manner of making the proof and its sufficiency, as inoperative. The general rule is that conditions which are impossible or insensible are void, and the obligation remains absolute, if it be not for the doing of an illegal thing. Sheppard’s Touchstone, title Obligation, 372, 373. But if any sense or certainty can be made of it, the obligation and condition shall both stand. By this rule we must endeavor to enforce the condition according to its sense, if it can be ascertained, rejecting only the manner of performance. The money was deposited on a trust, and it was evidently the intention of the parties that it should be repaid, provided Bell had previously made a payment of $>950 to La Roche, through Ellis, his agent. The legal effect is, that Bell was entitled to recover, if he could prove the payment, without having made any preliminary proof to a tribunal or to Ellis’s administrators. Any proof would be admissible that would be competent to establish the issue.

With a view to a compliance with the condition in the contract by proving the payment, depositions, which had been taken in a controversy pending in the probate court between La Roche and Ellis’s administrators, in regard to the money which Bell had paid to Ellis for La Roche, were introduced, which do prove that Bell paid the money. But they were introduced for the purpose of showing a compliance with the contract ; not for the purpose of proving payment to the jury on the issue joined. We have said that this part of the contract was inoperative, it was therefore not necessary to prove performance. Bell however had no cause of action unless he could prove that he had paid Ellis. For this purpose the depositions were inadmissible ; they were not taken in a suit between the same parties. They are taken to be used in a controversy pending in the probate court between La Roche and Ellis’s administrators, the former claiming to recover a decree against the latter for the allowance of the claim for so much money paid by Bell to Ellis or La Roche. Bell was no party to that controversy, nor was Merrill, except as the agent of La'Roche. The rule is that depositions taken in a different suit are not admissible except between the same parties, or those who are privies in blood, in estate, or in law. And they must be evidence against a party, or they are not admissible for him. 3 Phil. Ev. 572, note 438. We need not decide whether these depositions would have been competent evidence to prove .performance of the contract, the purpose for which they were introduced, since that was an immaterial matter. The witnesses did prove the only point which it was necessary for the plaintiff .to prove, to wit, that Bell had paid the money, but for that purpose, for the reasons already given, they were inadmissible. The material fact was established in the effort to prove an immaterial one.

For the error in admitting these depositions, the judgment must be reversed and the cause remanded.  