
    Thomas Drayton ads. James Wells.
    Parol evidence of what a witness swore, on a former trial of the same case, (wlio is present, but has forgotten what he swore,) is not admissible; nor can the statement, in the Judge’s opinion, granting this new trial, be read, to prove what the witness swore to, or the state of the facts on which the first verdict was set aside, 
    
    The testimony of a witness who has been examined on a former trial, between the same parties, andiwhere the point in issue is the same, may be given in evidence on a second trial, from the mouths of other persons who heard him give evidence, only, 1. Where the witness is dead.  2. Insane,  3. Beyond seas,  4. Where the Court is satisfied that the witness has been kept away by the contrivance of the opposite party, 
    
    Expediency, and not necessity, is the foundation of the rule.
    This was an action of assumpsit, on a verbal agreement, between the plaintiff and defendant, that the plaintiff should serve the defendant, as an overseer of one of his plantations, for the year 1809, and that the defendant, in consideration thereof, should pay him the value of three hands in the crop, for his personal services, and three like shares for three negroes belonging to the plaintiff, who were to labor in the crop.
    The case had been tried before, and a verdict given for the plaintiff, which was set aside, and a new trial granted, on the ground that the verdict was against evidence.
    This was a.second trial.
    *Tlre plaintiff proved the agreement, and proved the value of a share to be $120.
    The defendant then called a witness, (Abraham Buth,) who had been examined on the first trial, with a view to prove the agreement to have been, that the plaintiff should be paid only for the time he stayed in the employment of the defendant, if they should part during the year. This witness, it was alleged, had given this testimony on the first trial. But the witness, when examined, said he had totally dismissed the subject from his mind, since the first trial, which was had in November, 1813, till within the two days then last past; that he could, at the first trial, depend on his recollections, but not now ; that he remembered now little or nothing of what passed between the parties, concerning their contract. But that whatever he stated on the former trial was certainly true.
    The defendant then moved for leave to give parol evidence of what this witness swore on the first trial; but the Court overruled the motion.
    He then moved for leave to read the recital and statement of the evidence, which preceded the opinion of this Court, on the motion for a new trial, and setting aside the first verdict, as proof of the facts to which the witness had deposed on that trial. But this motion, also, was overruled, and the plaintiff had a verdict.
    The case was tried before William Ellison, Esq,, sitting for Mr. Justice Grimed, at Coosawhatchie, in November Term, 1818.
    This wa3 a motion for a new trial, on two grounds :
    1. Because the defendant’s motion was overruled, for leave to introduce parol testimony (under the very peculiar circumstances of the case) to show what had been sworn by Buth, on the former trial.
    2. Because the motion for leave to read the opinion of this Court on granting the new trial, to show the state of the facts on which the first verdict was set aside, was refused.
    
      
       Phillips’ Evidence, 200; Miles v. O’Hara, 4 Binney, 108.
    
    
      
      
        Cohen v. Farewell, 2 P. Williams, 563; Miles v. O’Hara, 4 Binney, 111; Peake’s Ev. 39, note, and 146, and the Appendix, 152; Swift’s Ev. 114; Jackson v. Bailey, 2 John. Rep. 20; Petton v. Walter, 1 Str. 162. It seems, if the objection be made, the postea must be produced; Beals v. Gurnsey, 8 John. 446.
    
    
      
       Peake’s Evidence, 152, in the Appendix; King v. Inhabitants of Eriswell, 3 Term. Rep, 705, 721.
    
    
      
      
         Peake, 41. R. See 4 Rich. 181.
    
    
      
       Phillips, 199, 200; Green v. Gatewick, Buller’s Nisi Prius, 243. R.
    
   *The opinion of the Court was delivered by

Cheves, J.

The books enumerate four cases only, in which the testimony of a witness who lias been examined in a former trial, between the same parties, and where the point in issue was the same, may be given in evidence, on a second trial, from the mouths of other witnesses, who heard him give evidence :

1st. Where the witness was dead.

2d. Where he was insane.

3d. Where he was beyond seas. And

4th. Where the Court was satisfied that the witness had been kept away by the contrivance of the opposite party.

It must be admitted, that in receiving this testimony in these cases, the Courts have gone very far. I think quite as far as they ought to go. But in all of them, the ground of the admissibility of the testimony, was the absence of the witness from death, or inability to be present. Now the analogy between the case where a witness is absent, and one where he is .present, does not seem to be very strong. I do not mean to evade the ingenious argument of the counsel for the motion, that the witness is mentally absent as to the testimony, or that there is some analogy between the case, and that of insanity; but only to state, that the general foundation of the rule, is the personal absence of the witness : and that the present motion is an attempt, by a series of consecutive analogies, to carry the rule so far as to apply it to a state of facts diametrically contrary to that on which it is founded. It is said that this testimony, in the enumerated cases, is admitted ex necessitate, and that in the present case, this reason applies with equal strength. But either the reason is, in my opinion, very indefinitely expressed, or I doubt its accuracy. What is the necessity ? That the party should have the benefit of the testimony. Now this necessity would equally exist in cases where witnesses had never been examined, and who were dead, or unavoidably absent.

But it would be utterly ^unsafe to receive their declarations, without oath, and without cross-examination. It is not then necessity, but expediency, which is the foundation of the rule. It has been deemed expedient to go as far as the cases already enumerated; but would it be wise to go further ? Would it be wise to embrace the present case ? I think not. In the first place, the cases must be very.few, in which third persons will recollect better what a witness said, than he will himself. Such cases must 6e anomalies, for which it will not be worth providing. It will be of little advantage. In the next place, it may be very dangerous. In the last view of it, there is danger that you will substitute rash confidence for prudent hesitation. That which was spoken with the impartiality of truth, may be reported with the heat of controversy. The ear hears too often as the mind thinks; and that which is wished, appears to be said But if we were to receive this testimony, because the witness says he has forgotten what he formerly deposed, could we refuse to receive testimony where he denied what he had said, not from turpitude, but want of memory ? I think not. Then, in all cases where a second examination was had, wo might, and in many we certainly would, have suppletory testimony of this kind. It is known better to the profession than any other men, how frequently the words and declarations of persons speaking plainly, and without equivocation, are misconceived, and misunderstood ; and they can easily infer from this fact, the consequences of the species of testimony which we are called upon to admit.

King, for the motion ; Martin, contra.

The second ground of the motion is equally untenable; at least the cases relied upon, in support of the motion, are cases in the Courts of Admiralty, and Prize Courts, and establish no precedent for the admission of the testimony here offered. In these cases, the rule goes no further than to allow their reception as proof of the concluding fact on which the judgment of the Court is pronounced — But,

1st. Common law judgments do not disclose a knowledge of any such fact.

*2d. It is not a like fact, which the defendant desires to introduce, in this ca'se, but the general state of the facts, on which the first verdict was set aside.

Now in a Court of Admiralty, or Prize Court, this state of facts is not received in evidence. In the Admiralty, the decree is evidence of the condemnation of a vessel, as unseaworthy, hut not of the state of the facts from which that unseaworthiness was inferred. And in a Prize Court, the decree is evidence that the property condemned was enemies’ property, but not of the facts from which that fact was deduced. Besides, in these eases, the judgments of the Courts are received as conclusive evidence, admitting of no denial, and as final judgments of the Courts. But the testimony proposed, is an opinion of the Court, not giving a final judgment, but one setting the case at large, and opening it for another trial. It is unnecessary to enlarge upon these cases to show their want of analogy, and they are all on which this ground rests. I am, therefore, of opinion the motion must be refused.

Colcock, Johnson, and Richardson, JJ., concurred. 
      
       Post. 541, note (a).
     