
    *MIAMI COUNTY,
    JULY TERM, 1834.
    JUDGES — WRIGHT AND WOOD.
    MELINDA SMITH v. MONTGOMERY SMITH.
    Divorce — evidence— dead witness — adultery—certainty—her defence.
    A witness cannot testify what another formerly testified who is dead, except he can give the exact evidence.
    Adultery should be charged with a place to enable the defendant to meet the charge.
    When a bill for divorce is amended there must be service— the appearance and waiver will not be received.
    The court will not grant a divorce by consent — and the lawyer making a. show of defence to aid the prosecution would be censurable.
    • Divorce. The bill alleges extreme cruelty as the cause of divorce. At last term the parties being in court, leave was given to amend the bill, which was done, and adultery with D. Felix and L. Whitmore at divers times alleged.
    A witness was called to prove what a witness on a former trial testified who is since dead.
   BY THE COURT.

Unless the witness will undertake to relate-exactly what the other witness testified he need not be sworn. The rule has been frequently recognized by this court.

The witness not being able to do that, ivas not sworn. Witnesses were then called to prove the adultery.

BY THE COURT. There has been no service since the amended .Tbill, nor appearance: besides, you have charged the adultery without any place, that is too uncertain to admit the proof.

The defendant’s counsel then appeared and offered to waive the objection.

BY THE COURT. It is not our business to ratify the agreement ■of parties for their own divorce, nor to aid them by receiving their ■confessions. When an adversary case is brought by proof within the law, we pronounce a decree. No case can be honestly brought within the law, by the confessions or other contrivance of parties, and counsel would subject themselves to censure, by undertaking to palm such an agreement upon the court as adversary by show ■of defence, to aid the prosecution. Bill dismissed.

[Deceased witness’s testimony overruled; Wagers v. Dickey, 17 O. 439, 441. Agreement not to resist divorce is void; Stoutenburg v. Lybrand, 13 O. 228, 232.]  