When the deposition of a witness has once been legally taken and used at a trial in court, and the witness is dead, there is no doubt of the admissibility of the deposition in evidence in a subsequent proceeding’, between the same parties and involving the same issue. In such case, it is not received by force of the statute regulating the taking of depositions, nor because it is a deposition; but by a rule of the common law, upon general principles of evidence, and because it is the testimony of a deceased witness, given upon the present issue between the parties, under all legal conditions and requirements as to the right of examination and cross-examination. 1 Greenl. Ev. § § 168, 553; Railroad Co. v. Howard, 13 How. 334; Emery v. Fowler, 39 Maine, 326; Bank v. Hewett, 52 Maine, 531.
Whether the issue in the two cases is the same, or not, is in the first instance a question for the presiding judge to decide, and a ruling or finding by him on that point can be reversed by the law court only when the case discloses an error therein; just' as the question, " whether the witness who is called as an expei’t has the requisite qualifications and knowledge to enable him to testify, is a preliminary question for the court. The decision of this question is conclusive, unless it appears upon the evidence to have been erroneous, or to have been founded upon some error in law.” Perkins v. Stickney, 132 Mass. 217.
The exceptions in this case afford no basis for a decision that an error in this respect was committed by the court at the trial. It is not shown that the issue in the suit in chancery, in which the depositions were taken, was different from that in this action, and an error in the determination of a preliminary question by the court is not to be presumed, when none is found in the case.
Exception is next taken to the admission, under circumstances stated in the report, of a similar deposition of a witness whose attendance was prevented by sickness; the ruling having been given on Thursday, and the fact being proved that on Monday of that week, the witness, being then at some distance but within the jurisdiction, had a typhoid fever and was delirious, and for *161the last week only his attendants had been allowed by his physicians to be with him.
The facts are very similar to those of an old case, Lutterell v. Reynell, 1 Mod. Rep. 284, where a witness on his way to court ’"fell so sick that he was not able to travel any farther, and his depositions in chancery, in a suit there between these parties about this matter, Were admitted to be read.”
Referring to the case just cited, it is said in 1 Whart. Ev. § 379 : "The same liberty would apply to depositions taken in a prior case between the same parties.” The rule is stated in substantially the same way in 1 Gfreenl. Ev. § 163; and in 2 Starkie, 2'62, -et seq. with reference to cases bearing directly or indirectly upon the question. Authorities directly in point are not numerous.
In Miller v. Russell, 7 Mart. N. S. 266, during the temporary sickness of a witness, the court of Louisiana allowed his testimony at a former trial, notes of which had been carefully kept, to be given in evidence, remarking that "to have examined him again, laboring under disease, would have afforded no better evidence, perhaps not so clear, as that which had been obtained from him on the former trial.”
In Judge Cowbn’s note (441) to Phillip’s Ev. which reviews the authorities on this subject, the decision in Miller v. Russell, is referred to as one " which does not go beyond the reason of receiving a deposition de bene esse, and as easily vindicable on principle while another decision in the same volume, Noble v. Martin, p. 82, extending the rule to the case'of a deputy sheriff, absent on official duty, is disapproved; and the note concludes, '’Those authorities which come nearest to the liberal principle, On Which secondary evidence is generally received, are less anomalous and, therefore, more scientific than the narrower decisions.”
It is true the authorities differ upon the degree of mental or physical disability which will justify the admission of such evidence, and, to some extent, upon the question whether it *162should be received at all, except upon proof of the permanent and hopeless incapacity of the witness to testify. We have no doubt the general practice of the .courts would be to delay a trial, during the temporary illness of a witness, rather than to receive any kind of secondary evidence of his former testimony, in which there might be a new element of error, or which might not be justly and fully adapted to the present exigency of the case on either side. There was a case in this state in 1846, not reported, State v. Canney, 9 Law Rep. 408, in which oral evidence (aided by minutes) of what a deceased witness testified at a former trial of a capital case was received, while the same was rejected as to a witness who had become insane, it not appearing that the insanity was confirmed and hopeless.
It is doubtless true that objections to secondary evidence of this kind have peculiar force in criminal trials. 2 Phill. Ev. 521, N. 437; 2 Starkie Ev. 487, 488; 1 Whart. Ev. § 179; Rex v. Savage, 5 C. & P. 143; State v. Staples, 47 N. H. 113.
Undoubtedly in this case the discretion of the eourt would have been exercised 'to postpone the trial, rather than to receive the secondary evidence, had it been offered in any less certain and satisfactory form than that in which it was presented; but when it was all in a deposition taken upon the same issue and between the same parties, where both had fully exercised the right to examine the witness, .and where no surprise, or sudden change in the aspect of the case, to render the right of further cross-examination valuable to the defendants, was alleged, if the court in view of all the circumstances determined that the ends of justice would be better served in the particular case by receiving the deposition than by interrupting the trial, we are not prepared to say, after a careful examination of the authorities cited in the able brief for the defendants, and by the authors to whom we have referred, that sucha decision was beyond the limits of good practice, or a violation of any settled rale of evidence. We think, in this respect, the case does not show that an error in law was committed at the trial. The law does not wholly exclude the physical inability of the witness to attend, as a reason for admitting such evidence, and there should be appai’ent error or *163injustice in the ruling of the presiding judge in the particular-case, before his decision should be reversed.
The quantity of water naturally flowing in a stream during the-months of July and August, 1875, was not a fact to be proved by the calculations of an engineer, whose only means of information were that he visited the region once during that period, drove around the country in company with persons familiar with it, and sketched an outline of the water-shed as nearly as possible.. Many of the facts which must have affected the supply of water-during those months, according to the statement of the engineer,, could have been known to him, if at all, only from information received,.and it does not appear that any hypothetical questions-to him were excluded.
It is the opinion of the court that a new trial cannot be granted, upon the motion.
Motion and exceptions overruled.
Appleton, C. J., Barrows, Daneorth, Virgin and Peters,. JJ., concurred.