
    James R. Russell, Administrator of William K. Carty vs. William Moore.
    If an appeal be taken from a judgment of a justice of the peace to the circuit court, the same species of evidence that was admissible before the justice, will be also admissible in the circuit court; either party may therefore be examined under oath in the circuit court, in the same manner he could have been examined before the justice.
    Where an appeal is taken from the judgment of a justice of the peace to the circuit court, and the plaintiff dies, and the suit is revived in the name of his administrator, before a trial is had in the circuit court, the administrator will be permitted to prove, on the trial in the circuit court what the plaintiff stated when examined on oath before the justice of the peace.
    ERROR from the circuit court of Madison county; Hon. John H. Rollins, judge.
    This was an action instituted by William K. Carty, before a justice of the peace of Madison county, founded on an account against William Moore, amounting to $32 68|, for money paid, laid out and expended. A judgment was rendered in favor of plaintiff, on the 4th day of July, 1840, for the amount of the account, and costs of suit.
    The cause was afterwards removed by certiorari to the Madison circuit court. . On the 11th day of May, 1843, the plaintiff’s death was suggested, and the case revived in the name of James R. Russell, his administrator.
    At the trial in the circuit court the plaintiff called a witness, by whom he offered to prove that William K. Carty, (the witness before the justice of the peace, the original plaintiff in the suit, and who was dead at the time of the trial in the circuit court,) had testified to certain material facts on the trial before the justice of the peace. To the introduction of which testimony the defendant objected, on the ground that it was not competent to introduce proof of what a deceased witness had testified on a former trial of the same cause. Defendant’s objection was sustained, and the evidence excluded by the court. To which the plaintiff excepted. No other evidence being offered, a verdict and judgment were rendered for the defendant, to reverse which the plaintiff now prosecutes this writ of error.
    
      Van Vacter, for plaintiff in error.
    But a single question is presented for consideration, by the ■record in this case. Is it competent to introduce proof of what a witness, now dead, testified on a former trial of the same cause 1 The affirmative of this proposition is fully sustained by the following authorities: 1 Phil. Ev. with Cow. & Hill’s notes, 2d edition, 230. 231; 4 Term R. 165; 2 P. W. 563; Swift’s Ev. 125; Jackson, &c. v. Bailey, 2 John. R. 17; White v. Kibling, 11 John. R. 128; Jackson, Spc. v. Woolsey, lb. 446; Beals v. Guernsey, 8 John. R. 446; Wilbur v. Selden, 6 Cowen’s R. 162 ; Crary v. Sprague, 12 Wend. R. 41; Glass v. Beach, 5 Yerra. R. 172; Miles v. O'Hara, 4Binn. 108, 111; Jackson v. Lawson, 15 John. R. 540; Pegram v. Isabel, 2 Hen. & Mun. 193.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action commenced before a justice of the peace. On the trial the plaintiff was himself examined by the justice, and judgment given in his favor. The cause was thence taken to the circuit court. The plaintiff afterwards died, and the cause was revived in the name of his administrator.

On the trial, evidence was offered to prove what the plaintiff had sworn before the justice, which was rejected by the court.

There can be no doubt, that if the statements offered to be proved, had been deposed to on a former trial, not by the plaintiff, but by some third person, competent as a witness by the rules of the common law, the evidence offered would have been admissible. 1 Phil. Ev. 230; 2 lb. 571, notes.

Our statute provides, that “if on a trial before a justice of the peace, other satisfactory evidence cannot be had, touching the matter in controversy, such justice may proceed to examine on oath, both plaintiff and defendant, or either of them.” How. & Hutch. 427, sec. 13. A just and liberal construction of this law, would lead us to the conclusion, that it makes the parties witnesses in a given state of case; and if an appeal be taken, the same rule must prevail in the circuit court, and the same species of evidence be admissible. Otherwise, a case decided rightly, and according to law, before the justice, must be reversed in the circuit court, because evidence admissible before the justice, cannot’ be used upon appeal. This would make, the whole provision nugatory. "We think, therefore, the evidence rejected should have been received.

Judgment reversed, and new trial awarded.  