I have a Deposition in my Hand, taken in perpetuam Rei Memoriam, which I offer to the Court as Evidence of Mr. Wheelwright’s Death. This is Evidence to satisfy the Court, and not a Jury. If your Honours are satisfyed of the Fact, whether by Attendance on his Funeral, or feeing his Corpse, or otherwise, you will order the Minute to be made by your Clerk.
¶1*229Wheelwright, one of the Plaintiffs in this Action, having died fince the Commencement of it, a Motion was made, that a Minute ihould be made of Wheelwright’s Death, becaufe, ihould fuch a Minute be omitted, it would be Error. (1)
*2301776.Mr. Auchmuty.Affidavits are received at Home when properly taken, but the Courts never receive them, when improperly taken. Will your Honours receive a Deposition in perpetuam &c., which were never received at Home, or anywhere else, while the Person was living, and might be produced to give his Testimony viva Voce. What if your Honours were satisfy’d of the Fact?— will your Honours make Minutes in your Records from your own Knowledge? Your Honours would then be Witnesses, and not Judges.Juft. Oliver.They might have produced the Witness; I am therefore for not making the Minute, as there is no Evidence to the Court.Just. Russell.If they could not easily have produced the Witness, I should have been for receiving this Evidence, but as they can easily produce him, I think they ought.Just. Cushing.I think this is good Evidence to satisfy a Court, and better than ever I knew in a like Case.Just. Lynde.I am for admitting this Evidence, for I am satisfy’d of the Fact.Ch. Justice.Certainly Courts are not tied up to such strict Rule in Admission of Evidence, as when it is to go to Juries. I am very full, that the Court have sufficient Evidence from this Deposition to sat-isfy them of Mr. Wheelwright’s Death, and am for the Minute’s being made.
¶4(2) But see Coffin v. Abbot, 7 Mass. 225, where it was held, that on the hearing of a petition for review, depositions are inadmissible, unlese taken with the same forms as if to be used in the trial of a cause.
