The opinion of the court was delivered by
Williams, Ch. J.— The evidence, in this case, proved, most conclusively, that the note in question was paid, and that it could not have come into the possession of the plaintiff until long after it was due and paid. The propriety of the ■decision, admitting testimony to prove that fact, is not questioned here. The only questions raised are, whether evidence ■of the testimony of Cobb, in a former trial of this cause, when both parties were present, is now to be received, (Cobb having since deceased) as he was not sworn. It appears that Cobb was a witness, and.' gave his relation without being sworn, by the consent of the plaintiff. His relation was evidence, or testimony, in the cause, and asjthe plaintiff waived *430any objection on account of his not being sworn, and consented that he might testify without being put under oath, we think he could not object, on that account, and at a subsequent trial, to receive evidence of that testimony when Cobb was dead ; that it comes within the spirit and reason of the rule of law, which admits evidence of what a witness has testified to, in a former trial of the same cause, between the same parties, at a subsequent trial, if the witness has deceased.
The other objections to the admission of the account and letter of Cobb, were not well taken, as he was, at the time of making the entry and writing the letter, the owner and holder of the note. He never indorsed nor sold the note to the plaintiff. He refused to put it in suit, and, a long time after the payment of it, he delivered it over, with his indorsement, thereon, to Leland, the person who paid it.
The judgment of the county court is affirmed.