
    *Ward and Williamson against Small.
    ON CERTIORARI.
    Where the deposition of a witness (who was sick and unable to attend the trial) was offered before the justice, and overruled, the witness himself cannot be admitted on the trial of the appeal.
    This was a certiorari to the Common Pleas-of Esses. The facts of the case were these: — there had been a trial before a justice of the peace, between the parties, on which trial a deposition of J. W. Burnet, Esq., who was sick and unable to attend, was offered in evidence on the part of the defendant. This deposition was overruled by the justice, and a judgment was rendered against Small, the defendant, who thereupon appealed to the Court of Common Pleas, and, on the trial of the appeal, offered J. W. Burnet, Esq., as a witness. He was objected to by the appellees, on the ground, that he had not been a witness on the trial before the j ustice. The Court of Common Pleas admitted Burnet as a witness, and reversed the judgment of the justice. The appellees now brought this certiorari, and
    Scudder, for plaintiffs in certiorari,
    contended that the admission of Burnet as witness before the Court of Common Pleas was improper; for, by the act of the legislature, (Rev. Laws 630, seo. 37), no other evidence could be received on the trial of the appeal than was offered on the trial before the j ustice. He also cited 2 South. 508; 2 Pen. 650; 1 John. Ca. 20.
   Kirkpatrick C. J.

We are of opinion, upon the words of the act, that the witness could not be admitted; there could be no other evidence received upon the appeal than was offered in the court below.

Judgment reversed.  