delivered" the opinion of the court. The counsel for the appellee having admitted that there was error in the opinions of the court below, as declared in the first and third bills of exceptions, it is only necessary for the court to decide on the second—and we have no doubt, that if a witness who has been examined in the trial of a cause should die, and a new trial should be had in the same cause, and on the same issue, after his death, the testimony which he gave on the first trial may be proved on the second.
The necessity of the case renders the admission of such proof indispensable, and no injustice can result from the adoption of the rule, as the testimony of the deceased witness was not only given under oath, but was given judicially in the trial of the cause between the same parties and on the same issue, and the person to be affected by the testimony enjoyed the invaluable right of cross examination. The rule is accompanied by limitations, which render it subservient to the purposes of justice alone. The evidence given to the jury by the deceased witness, must be proved, and it will not be sufficient that .the witness should give his own inference, or depose to the legal effect, -as the jury alone are competent to draw conclusions of fact from testimony.
In this case, the appellant below offered to prove by a competent and legal witness, “that when a jury was formerly empannelled to try this cause, Eversfield Bowie, who had been examined on the survey, who is since dead, and who had been sworn in court on the said trial, proved that the land had been in the possession of, and cultivated by Fielder Bowie, for a number of years, and that, as far as the witness could remember, he died in the seisin and possession thereof,” and so forth.
It is most evident then, that the witness was not produced for the purpose of proving the effect of the testimony given by the deceased witness, but to declare on oath what he did actually prove.
•' Whether the testimony -which the witness would have given, if the court had permitted him to have been sworn and examined, would have been legally admissible, it is *232impossible to- anticipate, but as lie was tendered for the purpose of giving testimony which was legal, he ought to have been heard, and then his proof, be it what it might, would have been a fair subject for judicial examination.
The court do not mean to intimate an opinion, whether any of the facts which the appellant offered to prove in the manner stated in the bills of exceptions, were or were not legally the subject of traditional proof.
The court therefore dissent from the opinion of the county court; as expressed in the second bill of exceptions^ and reverse their judgment.
JUDGMENT REVERSED, AND PÍIOCEDENDO AWARDED.