¶1I dissent from the opinion iust r . _ r / delivered. In cases where evidence has been received 0f what a witness, since dead, testified on a former occa-1 si on, it seems not only necessary to show a lis pendens, but, that no other proof will be allowed of this fact, short of the verdict, or at least, the postea ; it is even said, that there must have been a decision, and that the testimony offered must be in support of it. What proof it was intended to give of trial, in this case, or whether any determination was made by the commissioners, does not appear. But, without inquiring when, or how, such evidence be admissible, after a regular trial at law, and a decision by a jury, on the fact litigated, or whether ore tetms examinations before a board, thus organized, can ever become evidence on a subsequent trial, or, attempting to lay down general rules, applicable to cases of this nature, which is always dangerous, I see no reason for changing the opinion given at the circuit.
¶2It must be admitted, that receiving information of the declarations ofa witness, not reduced to writing and signed by him, from any person present, Whether one of the court or not, can never be very satisfactory. Who can be supposed so much interested in what is going on at a trial, as not only to attend minutely to all that witnesses say, but to take the trouble of committing it so well to memory, as to be able to give a faithful relation of it, at any time, however distant ? With a memory ever so well exercised, some part may escape which did not appear material, and yet may have been essentially so. If notes were taken, which, though it does not appear was probably done in this instance, they must be incorrect, or imperfect, since error is almost unavoidable in the hurry of a trial. . After all, who can say what -effect the testimony, if faithfully detailed, ought to have, if taken in connexion with the other evidence, that may have *22been produced on the former hearing, and which may not now he in the power of the opposite party? Suppose the character of the witness to be bad, would it not be an akward, if not a novel thing, to go into that inquiry, after he had been for years in his grave ? It must already bo perceived, that objections to this .species of teS* timony are sufficiently strong to justify a rejection of it, even where there has been a regular trial, whenever it does not appear absolutely necessary to prove the particular fact for which it is offered. • Here the infancy of Ephraim Blowers was the fact to be established. His mother was living in an adjoining state, and her testimony could have been obtained, under a commission, iii less than a fortnight. Now, a mother must generally be a better witness of the age of a child than an uncle or aunt $ and while living, and so easily examined, a party should never be permitted to resort to inferior testimony, which might be a temptation to keep the living witness out of the way. Withont imputing any design to the defendant, it is somewhat singular, that a witness, so very important to him,, if she could really establish the infancy of her son, when he executed the deed in question, was not produced or examined under a commission. I am of opinion, therefore, that the postea ought to be delivered to the plaintiff.
¶3New trial granted.