
    [Lancaster,
    June 7, 1824.]
    FORNEY against HALLAGHER.
    IN ERROR.
    A deposition taken by consent while a cause is depending before arbitrators, from whose award an appeal has been entered, cannot be read in evidence on the trial of the appeal, unless the witness be dead, or not within the state.
    Writ of error to the Court of Common Pleas of Lancaster county.
    The only question presented by the record was, whether the deposition of John Riley ', offered in evidence by the plaintiff below, and rejected by the court, was evidence. This deposition was taken by consent, when the cause was depending before arbitrators, from whose award the defendant appealed to the Court of Common Pleas. The witness was living, and supposed to be somewhere in York county, when his deposition was offered in evidence.
    
      Porter and Hopkins, for the plaintiff in error.
    
      Wright and Buchanan, contra.
   The opinion of the court was delivered by

Tirghman, C. J.

When a cause is brought into the Common Pleas, by an appeal from the award of arbitrators, the proceedings are de novo. This deposition, therefore, is to be considered, as if taken in another suit, between the same parties, for the same cause of action. This is putting it in as strong a point of light for the plaintiff, as it will bear, for the consent of the plaintiff was only, that the deposition should be taken in the cause then depending, viz: before the arbitrators, and in-such case, the general rule is, that the deposition would he evidence, if the witness were dead. Miles v. O’Hara, 4 Binn. 111. Richardson v. Stewartson’s Lessee, 2 S. & R. 84. Lightner v. Wike, 4 S. & R. 205. In the case of Magill v. Kauffman, 4 S. & R. 319, this court went one step further, and decided, that the deposition was evidence, though the witness were living, provided he was not within the state. But there was no ground for admiiting the deposition in the case before us, because the witness was living within the state, and within the jurisdiction of the court. I am, therefore, of opinion,' that it was properly rejected, and the judgment should be affirmed. .

Judgment affirmed.  