¶1delivered the opinion of the court.
¶2We approve the ruling of the court in refusing a continuance, for the proposed evidence would not have been available if offered. A void patent may be assailed and vacated at law in any controversy involving it, but one merely voidable cannot be collaterally attacked. Whatever may be said of the patents proposed to be attacked they are not void, and cannot be attacked collaterally.
¶3We would like to put an end to this case, but disapprove the admission of evidence of what the witness, Brown, testified to on a former trial. He was shown to have removed to Louisiana, and as his deposition could be taken it was inadmissible to prove what he testified on a former trial. We are aware of the contrariety of opinion on this subject and familiar with the discussion it has evoked, but side with those who deny that an absent witness whose whereabouts is known is to be treated as dead so as to let in evidence of his former testimony.
¶4We have excluded such evidence in criminal cases and no reason exists for a different rule in civil cases. Indeed, a stronger reason exists for admitting it in criminal cases than in civil, because of the inadmissibility of depositions in criminal cases. It might be wise for the legislature to provide for the admission of such testimony in both classes of cases, but until such enactment we think it inadmissible.
¶5Reversed and remanded.