The question often arises whether the testimony of a deceased or absent witness given in a former action between the same parties is admissible in evidence. This question may arise concerning testimony in a written deposition or given orally in court. The reasons underlying its admission or exclusion are the same in either case. And it may be that a witness, about to depart from the State, his testimony was taken in a written deposition, but afterwards returned to the State and testified orally in court at the time of the trial. In the latter case, if the witness be dead at the time of the second trial, the question arises as to whether the oral testimony or written deposition, or either, or both, be admissible in evidence. And if so, how to proceed. It has been held admissible to introduce in evidence, not only the written deposition, but, if preferred, the oral testimony of the deceased witness given at the former trial, notwithstanding the existence and accessibility of the deposition.

The earlier cases held that the precise words of the deceased witness should be given, and that to state the substance of them was inadmissible. The later cases, however, have relaxed the rule somewhat.

What the deceased witness orally testified to may be proved by any competent witness who will swear from his own memory or from notes taken by him, or by some other person who will swear to their accuracy.

Vol XI. - 11.