Flanagin v. Leibert

1 Brightly 61

Opinion

Kennedy, J.

— Admitted the notes to be read in evidence, remarking that it was not to be expected that the notes of testimony taken by counsel, should contain every word which witnesses might make use of. If they contained substantially what was said, that was sufficient. In this case the witness could not be compelled to attend, and counsel might read his notes, subject to correction by the other side.

*

It is a rule of law, that what a deceased witness swore at a former trial, may be given in evidence at a subsequent trial of the same point between the same parties. Lightner v. Wike, 4 S. & R. 205; Moore v. Pearson, 6 W. & S. 51. And so, where the witness is out of the state. Magill v. Kaufman, 4 S. & R. 319; Cox v. Norton, 1 Penn. R. 412. And this may be done by one of the counsel then concerned for the same party, though he does not recollect the testimony independently of his notes, nor whether there was a cross examination, and can give only the substance of the former testimony. Chess v. Chess, 17 S. & R. 408; Gould v. Crawford, 2 Barr 89; Cornell v. Green, 10 S. & R. 14; 1 Greenl. Ev. § 163 — 166.