
    ZELL VS. BENJAMIN.
    Notes of testimony taken before arbitrators where there is an opportunity for cross-examination are admissable on the trial of a cause in the same way as a deposition
    One of two plaintiffs jointly interested in the suit having died, the other ia incompetent to prove anything that occurred in his lifetime.
    Error to Common Pleas of Berks County.
    This was an action brought by Thomas Zell and B. L. Eshle- - man against H. D. Benjamin to recover one-fourth of the profits-of the sale of a farm which Eshleman and. Zell procured to be sold to Benjamin under an agreement that they were to have one-fourth of the profits. The farm was bought in July, 1867, for $18,000, and sold on September 15, 1870, for $25,200, leaving a profit of $7,200.
    Narr. filed May 13, 1872, and rule to arbitrate taken by plaintiffs May 29, 1872. The testimony of B. L. Eshleman was taken before the arbitrators on behalf on plaintiffs; he was cross-examined by counsel for defendant, and his testimony reduced to writing. On March 22,1876, on motion of counsel for plaintiff, the rule to arbitrate was stricken off, no award having been filed. Defendant pleads non assumpsit, with leave, etc. March 26,1876, the death of B. L. Eshleman, one of the plaintiffs, was suggested. Upon the trial of the cause, plaintiff offered Thomas Zell, the surviving plaintiff, as a witness. Defendant objected on the ground that he was not a competent witness. Objection sustained. Plaintiff then offered the notes of testimony of B. L. Eshleman taken by the arbitrators. Objected to. Objection sustained. Verdict and judgment for defendant. Plaintiff took this writ assigning for error the exclusion of testimony as above.
    
      H. W. Bland and S. L. Young, Esqs., for plaintiff in error
    argued that Zell was a competent witness because the right of action was exclusively in him, the same as in a surviving partner, and Eshleman’s representatives were not parties of record and therefore could not be affected by the result of the suit. Moore’s Appeal, 10 Casey 411. Hanna vs. Wray, 27 P. F. S. 27, does not rule the question.
    Second. The-notes of Eshleman’s testimony should, have been admitted. Moore vs. Pearson, 6 W. & S. 51; Speyerer vs. Bennett, 27 P. F. S. 445. Notes are the same as a deposition. Evans vs. Reed, 28 P. F. S. 415. A deposition is admissable, Sect. 3, Act April 15, 1869.
    
      George F. Baer, Esq., Contra.
    
    The testimony of Zell is inadmissable. Karns vs. Tanner 16 P. F. S. 297; Hanna vs. Wray, 27 P. F. S. 27; Standbridge vs Catanack, 2 Norris 368; Crouse vs. Staley, 3 W. N. C. 83. Second, in the offer the notes were not alleged to be substantially correct and the Court was right in rejecting them.
   The decision of the Court below was reversed on March 24, 1879, in the following opinion by

Trunkey, J.:

Zell and Eshleman were plaintiffs, and jointly interested in the action. Arbitrators were chosen in 1872, and four years thereafter, no award having been filed, the rule was struck off. Before the arbitrators, Eshleman was a witness on the part of the plaintiffs. and was cross examined by the defendant. Afterwards Eshleman died. Upon the trial, Zell offered the notes of Eshleman’s testimony, taken before the arbitration, which the court rejected. If there was not due proof of the notes, and of the hearings before arbitrators, and the presence of the parties, or if absent, of notice and opportunity to be present, the offer was rightly overruled ; but, it appears, the ruling was not for want of preliminary proofs, the notes themselves having been considered incompetent. It has been decided that notes of testimony, taken at a former trial of the same suit, when there was opportunity to cross-examine, are substantially a deposition, and that competent evidence under the Act of 1869, so taken, is admissable as depositions under the Act of March 28, 1814; Pratt vs. Patterson, 31 P. F. S. 114; Evans vs. Reed, 28 Ibid 415. The offer, if preceded by due proofs or waiver thereof, was admissible. When this cause was tried Zell was incompetent to prove any transaction which occurred during the life of Eshleman, and he was rightly excluded as a witness for that purpose: Brady vs. Reed, 87 Penna. State Rep. 111.

Judgment reversed and a venire facias de novo awarded.

Nous. — The case was retried and again taken to the Supreme Court and reported in 12 W. N. C. 248.  