
    Lightner and others against Wike.
    In Error.
    
      May.
    
    THIS case came before the Court on three bills of exceptions, which were returned with the record, on a writ r - A error to Lancaster county.
    ta^J¡ of the testimonyofa deceased witness, supported merely by his oath, that that hetook said as it fell lection of-what he said, except from his notes, cannot be received in evidence on a subsequent trial of the same cause, to prove what the witness testified.
    In the Court below, it was an action of ejectment brought by the plaintiffs in error against the defendant, in which the title of both parties depended on the validity of a writing, purporting to be the testament and last will of George Wike, deceased, the father of the defendant. The plaintiffs claimed in opposition to the will; the defendant under it. There had been a former trial on an issue of devisavit vel non, directed by the Register’s Court, in which a certain Anthony Ellmaker, deceased, had been examined as a witness. ’ Charles ESq. 0ne of the plaintiffs’ counsel in this cause, had been counsel for the same parties, (who were defendants in the feigned issue,) and took notes of the testimony given by Ell-maker. He was sworn as a witness for the defendant on the trial in the Court below, and produced at the request of the defendant, his notes of Ellmaker's testimony. He swore, «that it was his usual practice, to take the substance and usually the words of a witness ; that he believed he took down what Ellmaker said, as it fell from him ; that he had no reason to doubt his having taken down his testimony as he delivered it; the substance of it; and that there had been no alteration of his notes since they were taken, but that he could not recollect a word the witness said, but from his notes; that he had no other recollection that he was even examined as a witness, than from what appeared on his notes.” After this evidence had been given, the defendant’s counsel offered Mr. Smith’s notes in evidence. The Court admitted them, and the plaintiffs’ counsel excepted to their opinion.
    
      The declarations of a person who is named an executor and devisee in a paper purporting to be a testament and last will, are not evidence in a suit to which he is not a party, depending on the validity of such paper as a will.
    Where the defendant gave evidence to prove communications of a very confidential nature by a testator to a witness, it was held, that evidence of declarations by the testator, to another witness, tending to shew, that the first witness was not upon the terms of friendship and confidence' with the testator which he pretended to be, was admissible *
    
      The plaintiffs in the course of the trial offered to prove declarations of a certain Jacob Wike, who was named an executor and devisee iri the instrument, alleged to be the will of George Wike, but who was not a party to this suit, on the day-after the decease of George Wike, that there was no will. This testimony was over-ruled by the Court, and formed the subject of the second bill of exceptions.
    The contents of the third bill of exceptions are stated by the Chief Justice so fully, as to render it superfluous to do more than refer to that part of his opinion which relates to it.
    The case was argued by Buchanan and C. Smith, for the plaintiffs in error, who cited, Phill. Ev. -199. Miles v. 0’-Hara.
      Peake’s Ev. 190. Lessee of Clymer v. Littler and by
    
      
      Montgomery and Hopkins, for the defendant in error,
    who referred te Phi 11. Ev. 71.211. Longenecker v. Hyde.
      
       Bull. M. P. 296. Stout v. Rassell.
      
    
    
      
      
         4 Linn. 108.
    
    
      
      
        l>) 3 Burr. 1244.
    
    
      
      
         6 Sinn. Í.
      
    
    
      
       2 Yeates, 33#.
    
   The opinion of the Court was delivered by

Tilghman C. J.

It is a rule of law, that what a deceased witness swore at a former trial, may be given in evidence at a subsequent trial of a cause depending between the same parties. This is from necessity. It is an exception from the general rule, which demands the examination of a witness viva voce, and must be extended no further than necessity requires. The deceased witness cannot be examined; therefore a living witness is permitted to prove what the deceased had said. But this proof must be on oath, because there is no necessity that it should be otherwise. Mr. Smith, therefore, might have been permitted to declare upon his oath, and not otherwise, what Ellmaker had sworn on the former trial. But he could not undertake to prove this upon his oath, and therefore it was endeavoured to supply the defect of oath, by his notes; these notes have no character recognised by the law; they are no more than a private memorandum, by which the witness would have been permitted to refresh his memory y but when refreshed, he must swear from his own memory, and not from his notes. This Mr. Smith was so far from being able to do, that he declared he had no recollection of Ellmaker’’s testimony, even after he had read his notes. The notes, therefore, could not be admitted as evidence, without violating the principles of the law. It would be evidence of the most dangerous nature. Mr. Smith is known to be a man of remarkable accuracy. But others who take notes, may be of a different character. In general, the taker of notes condenses the words of the witness into what he supposes to be the substance. But the partiality of counsel inclines them to view every thing in a light favourable to their cause; and during the trial, their ideas pass through a medium, which diverts them from the right line; of this, I presume Mr. Smith was sensible, and therefore he would not undertake to swear, that his notes contained the exact testimony of Ell- maker. It would be most extraordinary then, if the Court should give more credit to his notes, than he gave to them himself. In short, it appears to me, that to suffer such a writjng to g0 to the jury, would be to admit evidence xvithoui oath, of what Ellmaker had sworn. The case of Miles v. O'Hara, was cited for the plaintiff. All that was decided in that case was, that the notes of Judge Yeates, unsupported by his oath, were not evidence ; but what testimony would have been required of the Judge, in order to make his notes evidence, was not a question before the Court, and consequently was not decided.

2. The second bill of exceptions in this case, was taken because the Court refused to admit evidence, offered by the plaintiff, of the declaration of a certain Jacob Wike, (named an executor and devisee in the writing set up as the will of George Wike deceased,) made after the death of the said George Wike, that he had left no will. Jacob Wike was no party to this suit, nor could the verdict be given in evidence, for or against him; he was a competent witness. Clearly, therefore, his declarations were not evidence. They do not fall within the reason of confessions by a party to the suit.

3. A third bill of exceptions was taken by the plaintiff. After the defendant had given in evidence, the deposition of Leonard Ellmaker deceased, in which the said Ellmaker swore to a confidential communication made to him by old George Wike, and also swore, that he and the said Wike had been long in the most intimate and unreserved friendship ; the plaintiff offered to prove, by the deposition of Christian Smoker, that in a conversation with the said Wike, the supposed testator, he asked him, “ where he got his grinding done ; he answered, at Henderson’s mill; the deponent then asked him, whether he did not grind at Ellmaker’s mill; he answered, that he had need enough of his own grain; that he had his grinding done at Rine’s mill, and Hesse’s mill.” This evidence was objected to by the defendant, and rejected by the Court. Of what importance the jury might have thought it, I know not, but the evidence should have gone to them; because it went in some degree to contradict the assertion of Ellmaker, that he was the intimate and confidential friend of George Wike, and to shew the improbability of Wike’s having intrusted to Ellmaker, family concerns of a very delicate nature. It is not hearsay evidence, but matter of fact, tending to rebut other evidence of a similar nature which had been given by the defendant. It was not offered to discredit directly the character of Elltnaker, but to shew, that what he had sworn was not the truth, because inconsistent with other facts. It was, therefore, legal evidence.

My opinion, upon the whole, is, that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facing de novo awarded.  