I have so often been accused of an attachment to v .common law principles and forms in preference -to local practice, .that it gives me pleasure to testify, in this instance, a paramount .respect for our own precedents. This court had flattered itself that the law was settled by Bovard v. Wallace, and Nussear v. Arnold, (which is this very case,) if not in conformity to common law ^analogies, at least .consistently with justice and reason; and even ■were my opinion of the fitness of those decisions changed, I would, to avoid the mischiefs which are inevitably produced by overturning the solemn decisions of the court of the last resort, for theoretic reasons, adhere-to the known landmarks of the. law by which courts and counsel may proceed with safety and certainty. I ana happy .to say my brother Smith concurs with me in opinion, that the admissions of Henry Dietrich, a principal devisee, and party to the feigned issue, were erroneously received; and, the court being equally divided on this point, the authority of the cases to which I have referred, is, as yet, untouched. On the remaining point, I would, for the sake of unanimity, be inclined to yield the opinion I expressed in Pipher v. Lodge, 16 Serg. & Rawle, 214, as the authorities are nearly balanced on the question, whether the sufficiency of evidence to lay a ground for the introduction of a depo_.sition, can be re-examined on a writ of error; but as Judge Smith holds out on this point also, I am inclined to say the judgment .ought to be reversed on both points.
Huston, J.‘The two first bills of exception were in this court argued together, but an attempt was made to draw a distinction between them, by reading the part within brackets, without the ■words “ to prove,” and considering the rest of the sentence as a statement of facts admitted, and by using the words, “but at the same time the court overruled the said deposition,” as conveying the idea that although the court allowed them in words to prove the allegation in brackets, yet in fact, they decided without hearing such facts proved; beyond ¡a doubt the deposition was offered the second time for the purpose of accompanying it with the jrecprd of the issue in which it was taken: — because to enable *319one to read a deposition, taken in a former cause, or in another court, between the same parties, you must show that there -was such a cause in such court: so the court understood it. There was no offer to give further evidence of inability to attend. If offered and refused we should have heard of it. To consider a bill of exceptions, on account of some inaccuracy of expression, as presenting a case so different from the real facts, as that counsel will not even -assert events to have happened as they now allege them, would' be to pervert a bill of exceptions to the worst purpose. Was this deposition evidence, if the witness was standing in court, and if not, was the proof of inability to attend such as that 'it was error in the court below to reject it?
In the first view, the principal part of the argument was founded on reading the first sentence of the act of assembly as far as the words “ made part of the proceedings in the case:” and to be sure, if no other words had followed, the argument was strong. The act contemplates two classes of cases, one where on caveat, the whole •matter is heard and decided by the Register’s Court, without the intervention of a jury, and here all the testimony must be reduced to writing, and forms part of the proceedings, and if an appeal be -taken, goes up as part of the cause.
The other class is where the weight and effect of the evidence is •not submitted to the Register’s Court, but to a jury; and as there the mode of proceeding is by examination of witnesses, in presence of the jury, and their finding is conclusive on the facts submitted, the testimony given before them, does not go up on appeal, nor is it known to the superior court. Suppose the testimony of the witnesses to the will is reduced to writing in the Register’s Court, and from this testimony it would appear to be a valid will, yet an issue is directed, and on the whole evidence the jury find it is not the •will of the testator; those depositions are not within the words of the act of assembly, and if sent up on an appeal, must be considered as no part of the record, -or an immaterial part.
In ordinary cases the witnesses go before the Register, and make oath, that they saw the testator execute and deliver the paper as his last will and testament, and that he was of sound mind. These affidavits are endorsed on the will, and letters testamentary are granted to the executors. In giving copies of the will, it was usual, and at one time was thought necessary, to give copies of these affidavits. It was, however, long ago decided that a copy of the will, and a copy of the record, that it was on such day proved and approved, was sufficient. This certificate of the proof, and that it was approved, is the real and true probate, and what makes it evidence in any, and every court. If the affidavits of the •witnesses are added, along with this certificate, they are often called the probate, and read along with it, though the witnesses are standing in the court, where the will is offered in evidence; and k *320hll the cases where such affidavits have been,read, it will be found that the Register or Register’s Court have acted on them, and adjudged the will to be proved. Where these depositions have not been acted on, and no adjudication on the validity of the will, they may be used as any other deposition taken before a court having jurisdiction of the same matter afterwards trying in another court: that is, may be used, if the deponent is dead, out of the jurisdiction of the court, or unable to attend. It appears Mr. Gloninger had been twice examined in open court, on trials of this cause, before the same judges who rejected .this deposition. In most cases in this state, and in all of much importance, the counsel on each side, and •the court, write what the witness says, and all that he says, (for he stops at the end of each sentence until it is written,) we-cannot ’ suppose these, depositions I may call them, were lost. They were not offered to be given in evidence.. The president, and perhaps both the judges, knew Mr. Gloninger, and .the witnesses who swore to his state of health. They had also witnessed his former examinations, and cross examinations in court, and they could, although we cannot judge of the importance of his being examined in the presence of the jury. I .cannot allow that a particular temperament of body in the witness, unless very peculiar indeed, can change ■the law. If a witness intends to tell, and does tell the truth fairly, there is no reason why he should become much excited, or why his choler should rise so as to endanger apoplexy; and if he will ■become excited in a particular cause, and will answer so as to make a tedious cross examination necessary, it is right the jury ■should see and hear him. There are two cases, and I recollect but •two, where this court have reversed, because the court below erred in receiving or admitting a deposition, on account of a defect of proof of inability to attend; one was a very early case; and there •are seven or eight, wffiere it has been said to be a matter pretty much depending on the discretion of the court, who try the cause. The question whether such proof has been given of inability to procure a written paper, in order to let in parol evidence of its contents, is like this in principle; I recollect two cases, Magil v. Caufman, and another, both reported, in which this court refused ■to reverse, or even seriously consider the matter, saying it was within the jurisdiction, and depended on the discretion of the court below. This court does not now say, that there can be no case in which we will reverse on such account, but w'e say it must be a very strongand gross case, in which we will interfere, and we think this not such a case.
The next two bills of exceptions were argued together, and they present the question, whether, in such an issue, the declarations or admissions of the principal devisee in the alleged will, and who is sole plaintiff in the cause, can be given in evidence 1 Perhaps the decisions of this court, on this point, have been peculiar to this state, *321except one early case in Massachusetts. They seem, however, carefully, either to keep clear of this case or admit it. Bovard v. Wallace, 4 Serg. & Rawle, 499. In questions on the validity of a will, the declarations of an executor or devisee, who is not a party to the suit, are not evidence.
The case of Nussear v. Arnold, 13 Serg. & Rawle, 323, is still stronger. The question there was, whether the declarations of a devisee, who was carrying on the cause, and whose agent was the plaintiff, in the feigned issue, should be given in evidence. And in the argument and decision it seems to be taken for granted, that if the devisee had been a party, there would have been no dispute. The objection that these admissions may effect the rights of other devisees, has not been of so much avail in other courts. In 17 Johns. 335, and 18 Johns. 330, the recital in a deed, and the parol'declarátions of one of several lessors in ejectment, were admitted, although they might effect the other lessors.
The admission of sanity or insanity by a devisee is one thing, the repeated admission that a man of ninety years of age was childish, and becoming more so every day, is another and stronger matter, when the fact trying is whether the very person who made this declaration or admission, did not at that very time, or soon after, procure the will to be made by misrepresentation and imposition on this weakness. The cases cited prove the general position, that the declarations of a party on record, and who has an interest in the cause trying, are in all cases-evidence. We think therefore, that as well the cases in this court,(which always except the case where devisee is not a party to the' suit,) .as the uniform current of authorities, require that we affirm the decision of the Common Pleas on these two bills.
The last bill of exceptions was not insisted on. The declarations of a married woman in the presence of her husband, or when acting as his agent, are evidence against him, but generally they are not.
Rogers, X, had been of counsel in the cause, and took no part.Judgment affirmed.