and firm of D. R. Smith & Co., located in South | Carolina against D. R. Smith & Co., upon the Carolina, with lumber and book accounts, default of D. R. Smith, the only one of the 225] *at Rondout, New York;" and Crane defendants who was served, and executions thereby released Tompkins from all debts, were lodged to bind the property of said firm dues and demands owed by D. R. Smith & and the individual property of D. R. Smith, Co., except seven notes in the National Bank but not the separate property of Walter B. at Rondout, which it was agreed should be Crane; that under said judgments and execucontinued from one to two years, if required, tions the marshal of this court, at Kingstree, Tompkins and Crane holding themselves re- in the county of Williamsburg, on the 7th day sponsible for the notes, but Crane agreeing to of September, 1885, sold the interest of the said pay the notes and indemnify Tompkins from all D.R.Smith & Company, and the interest of D. loss incurred from their extension. Crane and R. Smith individually in the real estate of D. R. Tompkins also agreed to the dissolution of the Smith & Co., for the sum of $3850, to Thomas firm from date. On April 24, 1877, Tompkins, R. McGahan, one of the defendants in this. in consideration of $1322 paid to him by Crane, suit, and on the same day executed and deassigned to Crane the mortgage made by livered to him as purchaser, a deed of conveySmith to Tompkius, August 28, 1869. ance of the property described in the deed, which is the same property, the three fourths. interest in which was mortgaged by Walter B. Crane to the National Bank of Rondout; that the said Thomas R. McGahan, assuming to be the owner of the entire property, shortly after the said sale to him executed to the defendant, Mrs. Elizabeth P. Smith, wife of the above named D. R. Smith, a lease of said property, including the mills, machinery, and personal property connected there with; that since then the said D. R. Smith, as agent for his wife. has been using the said mill property for[227 their own purposes, and has been carrying on an extensive business in cutting and shipping lumber; that the title to the three undivided one fourths in the fee of said real estate was conveyed by regular deed to Walter B. Crane, the mortgagor, who, with his wife concurring, conveyed them to the National Bank of Rondout to secure the copartnership debt of D. R. Smith & Co.; that the title deeds to Crane show no trust of any kind qualifying Crane's title; that there was no evidence to show any special trust which would restrict or qualify Crane's right to make an absolute conveyance of his undivided three fourths interest in said real estate and the improvements thereon, of the nature of fixtures or appurtenances thereto belonging; that there was satisfying evidence that D. R. Smith knew that the mortgage bad been given as security for the debt of D. R. Smith & Co.; that he knew that the notes were renewed, and that he by his silence entirely acquiesced in the act of Crane in giving the mortgage to the bank.' On November 30, 1893, Crane conveyed to the National Bank at Rondout an undivided three fourths interest of all the tracts of land known as Longwood and as Britton's Ferry, in consideration of the sum of $12,000, which deed recited: "This grant is intended as a security for the payment of four certain prom issory notes, amounting in the aggregate to twelve thousand dollars, or the renewal or renewals of them, or either or any of them, together with the lawful discount or interest thereon, said notes being made by David R. Smith and Walter B. Crane, under their firm name of D. R. Smith & Co., and indorsed by Walter B. Crane and Henry M. Crane, and payable at the National Bank at Rondout." In case of default in payment it was provided that the property might be sold by the parties and that after payment, from the proceeds, of the indebtedness and costs, the overplus, if any, should be paid, on demand, to Crane, his heirs or assigns. The evidence tended to establish other facts referred to by the circuit court. The circuit court, Judge Bond presiding, in its opinion or decree found that Walter B. Crane, the mortgagor, owned the undivided three fourths of the property described in the bill; "that he mortgaged the same to the National Bank of Rondout in November, 1883, to secure $12,000 of promissory notes, made by David R. Smith and Walter B. Crane, under the firm name of D. R. Smith & Co., and indorsed by Walter B. Crane and Henry M. Crane, and payable at 226] the National *Bank of Rondout; that this mortgage was held by the National Bank of Rondout in its possession and was, at the request of Walter B. Crane, one of the copartners, withheld from registry in South Carolina from the date of its delivery in November, 1883, until the 27th February, 1885, when it was duly recorded in the office of the clerk of the court of common pleas of Georgetown County, South Carolina, and the 6th day of March, 1885, when it was recorded in the office of the register of mesne conveyances for Williamsburg county, in said state; that the notes recited in the mortgage were not paid at maturity and were from time to time renewed, until the 6th, 17th and 29th days of June and the 3d day of July, 1885, respectively, at the expiration of which times of payment they each became due and since said dates have remained unpaid; that on the 27th of April, 1885, certain judgments were recovered in the circuit court for the district of South The circuit court also said: "It is unnecessary to consider the question whether three fourths in the land and fixtures appurtenant to the land were or were not partnership property, and whether, as such, were first liable to copartnership debts in priority to the individual interests of the copartners therein, because assuming this to have been the nature of the property, the mortgage of the partnership assets by one copartner for the benefit of the partnership, without the assent of the other partner would, in the absence of fraud (which is not here suggested) be undoubtedly valid as a security to a particular creditor to whom it was mortgaged; a fortiori, if made with the assent, express or implied, of the other partner, who, in the case of D. R. Smith, knew of the mortgage, did not object, and who participated in the benefit of the extension of the debt which the firm of D. R. Smith & Co. obtained from the bank. the lands were devoted to its use, it seems to us nevertheless quite clear that the mortgage by Crace of the three fourths standing in his name to secure a partnership debt was valid, and could be enforced against these defendants. "The title which Thomas R. McGahan, as as tenants in common, yet if an equity resulted purchaser, acquired under the sale and con- to firm creditors because the purchases were veyance in September, 1885, made by the mar-made in furtherance of the joint enterprise and shal under the execution against the firm of D. R. Smith & Co. and the individual interest of D. 228] R. Smith, *could be no better or higher than that which the firm had or could have claimed in the property so sold and conveyed. As D. R. Smith & Co. and D. R. Smith could not have claimed to hold the property in derogation of the right to the three fourths interest therein of the National Bank of Rondout under the mortgage given to it in 1883 to secure the debt of E. R. Smith & Co., so the defendant Thomas R. McGahan cannot claim against the right of the bank to three undivided fourths in said land and improvements and fixtures." The court entered a decree annulling the lease made by McGaban to E. P. Smith, and directing an account for three fourths of the rents and profits from September 7, 1885, when McGahan assumed the ownership and possession of the whole property, and for any waste which might have been permitted between that date and the date of the accounting; foreclosing the equity of redemption of Walter B. Crane and directing a sale of the property, the proceeds after payment of costs to be paid to complainant to be credited on the debt secured by the mortgage. From this decree defendants prosecuted an appeal. Messrs. J. N. Nathans and Samuel Lord for appellants. Mr. Theodore G. Barker for appellee. Mr. Chief Justice Fuller delivered the opinion of the court: 232] *It is argued that the circuit court should have held that the withholding of the mortgage from record invalidated it as against the creditors of the firm, but no such defense to the mortgage was set up in the answer, and there having been no issue thercon below, it cannot be made in the first instance on appeal. The decree of the circuit court refers to no such defense, and it is now too late to raise it. Nor do we find anything from which to conclude that the firm was given a fictitious credit by the conduct of Crane in this particular, or that the withholding of the mortgage from record amounted to a fraud upon creditors of which these defendants could complain. McGahan was not a creditor, but claimed to have been a purchaser after the mortgage had been recorded; D. R. Smith was not a creditor and was not misled; and there is no evidence in the record that any creditor dealt with D. R. Smith & Company on the faith that the three fourths interest in the lands standing in Crane's name was partnership real estate. The error assigned in this regard is untenable. The circuit judge was of opinion that Crane held the undivided three fourths of the lands in question in individual ownership in fee, unaffected by any trust, and that it was competent for him to make an absolute conveyance thereof in virtue of such ownership. But, although the deeds were made to North, Crane, Tompkins, and Smith as individuals, and the purchases were made in severalty, and they held, and Crane and Smith subsequently held, The settled rule in this country is that where a deed is executed on behalf of a firm by one partner, the other partner will be bound if there be either a previous parol authority or a subsequent parol adoption of the act; and that ratification may be inferred from the presence of the other partner *at the execution and [233 delivery, or from his acting under it or taking the benefits of it with knowledge. 3 Kent, Com. *48; Cady v. Shepherd, 11 Pick. 405, 406, 22 Am. Dec. 379; Peine v. Weber, 47 Ill. 41; Frost v. Wolf, 77 Tex. 455; Schmertz v. Shreeve, 62 Pa. 457, 1 Am. Rep. 439; Wilson v. Hunter, 14 Wis. 683, 80 Am. Dec. 795; Rumery v. McCulloch, 54 Wis. 565; Pike v. Bacon, 21 Me. 280, 38 Am. Dec. 259; Russell v. Annable, 109 Mass. 72, 12 Am. Rep. 665; Gunter v. Williams, 40 Ala. 561; Sullican v. Smith, 15 Neb. 476, 48 Am. Rep. 354. This is the accepted doctrine in New York: Smith v. Kerr, 3 N. Y. 144; Graser v. Stellwagen, 25 N. Y. 315; Van Brunt v. Applegate, 44 N. Y. 544; and in South Carolina: Stroman v. Varn, 19 S. C. 307; Salinas v. Bennett, 33 S. C. 285. In Stroman v. Varn, supra, the supreme court of South Carolina laid down the general rule that one partner might bind his copartners by deed if the others were present and authorized it, or if authority to do so was fairly inferable from the evidence of their conduct and the course of business, and it was held, where there were four partners in a sawmill, two of whom owned the land, and one of the others mortgaged it in the name of the four and signed the firm name, that the mortgage was a valid lien on the land, the two owners having received the consideration and in many ways acknowledged and ratified the mortgage, and that a purchaser of the interest of one of the owners in both land and partnership after record of the mortgage was bound by its lien. In Van Brunt v. Applegate, supra, it was held that a conveyance by one partner having the legal title to one half of certain real estate (the other half being in the other partner) the whole of which was in equity partnership property, to a creditor of the firm in payment of a partnership debt, vested good title to such undivided half in his grantee, notwithstanding it was executed without the knowledge or consent of the other partner, the firm was insolvent, and its effect was to give a preference to the grantee. The argument that a partner holding the legal title of one half held a moiety of it for himself and a moiety for his copartner was rejected, and it *was decided that a partner [234 holding the legal title for the firm has the same power over it as over firm personalty, and that his conveyance for firm purposes passes the title free of the firm's equities; that if he were a trustee as to his copartner the separate deeds of both partners would leave one half the tract unconveyed but that a joint deed was not necessary to convey the firm title. the severance be wrongful. Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425. So it may be conceded that the mortgagee is not entitled to rents and profits unless a lien thereon is reserved in the mortgage (Hardin v. Hardin, 34 S. C. 80, 81) and that although the mortgagee may have the right to take possession upon condition broken, if he does not exercise the right he cannot claim the rents. Teal v. Walker, 111 U. S. 242 [28: 415]. But the accounting was not awarded by the circuit court as resulting from the application of the doctrine of waste or the right to rents and profits as between mortgagor and mortgagee, but rested on the ground that McGahan acquired nothing more under the sale and conveyance to him than Smith's one fourth of the property, and that his taking possession of the entire lands titled the bank to an account for three fourths of the property so converted. In this case the title to three fourths of the land stood in Crane. It is said that the legal title to Tompkins' three eighths (one eighth having been conveyed by North to Tompkins and one eighth to Crane) was never conveyed to Crane, but we regard the case made as sufficient in this respect. The bill alleged that Crane was "seised and possessed in fee of all the undivided three fourths of all those tracts and parcels of land," and this averment was not denied in the answer, while appellants admit that Crane "had the right to compel Tompkins to make a conveyance of the legal title." No question arises as to a conveyance in the name of the firm, as, in order to apply this three fourths in security or payment of partnership liabilities, a conveyance by Crane in his own name was required, and the mortgage was given by Crane accord-*and converting the timber thereon en [236 ingly to secure partnership notes and their renewals, as appeared on the face of the mortgage. The character of the transaction was not changed because Crane may have desired to protect his own indorsements made for the benefit of the firm, nor by the fact that the mortgage, pursuing the legal title, happened to provide that any surplus after sale should be paid to Crane, "his heirs or assigns.' Moreover, Smith was not called as a witness, and although the testimony of the president of the bank tended to show that Smith objected to the giving of a mortgage in the name of D. R. Smith & Company, we concur with the finding of the circuit judge that Smith knew of the exacution by Crane of the mortgage of the three fourths, which as between them belonged to Crane, and accepted the benefits of the renewals secured thereby without objection. The necessary conclusion is that the partnership indebtedness to the bank was properly secured by the mortgage as against other 235] firm creditors, even if *Crane's title could under some circumstances have been subjected to an equity in favor of the firm. The bank's rights could not be divested by sale under judgments against D. R. Smith or D. R. Smith & Co., whether the property was held in individual ownership or affected by an equity which passed to the bank in security of firm indebtedness. Such being the situation, McGahan and his lessee could not claim to occupy under McGahan's purchase the position of a mortgagor in possession, and, indeed, that is not appellant's contention, which, on the contrary, denied the validity of the mortgage altogether. And since they proceeded to cut and sell the timber from the mortgaged premises from September 7, 1885, to the date of the decree in derogation of the rights of both the bank and of Crane, the circuit court correctly held them to an accountability for three fourths of the proceeds thus realized. As between mortgagor and mortgagee, whether the mortgage be regarded as passing the legal estate or as giving merely a lien for the debt, the right of the mortgagee to be pro tected from the impairment of his security is alike recognized (Jones, Mortg. $ 684: Brady v. Waldron, 2 Johns. Ch. 148; Nelson v. Pine gar, 30 Ill. 473) but the mortgagee cannot recover for waste in the cutting of timber from the mortgaged land by the mortgagor unless If McGahan was accorded the rights of a tenant in common, he could not complain at being subjected to the obligations of that relation. If one exclude his cotenant under a claim of exclusive right or otherwise, the cotenant is entitled to compensation to the extent of the use of which he has been improperly deprived, and it is settled law in South Carolina that the occupying tenant is chargeable with what he has received in excess of his just proportion, and is liable to account to his cotenant for the rents and profits of so much of the common property as he has occupied and used in excess of his share. Thompson v. Bostick, 1 McMull. Eq. 78; Hancock v. Day, 1 McMull. Eq. 72, 36 Am. Dec. 293; Holt v. Robinson, 1 McMull. Eq. 475; Jones v. Massey, 14 S. C. 292; Scaife v. Thomson, 15 S. C. 337; Pearson v. Carlton, 18 S. C. 47. The character of McGahan's possession was hostile, and in any view, on general principles of equity, the accounting was properly decreed. But it is objected that the decree was erroneous in this particular, because the heirs of Crane were not parties to the suit. By the 47th rule in equity, in all cases where it appears to the court that persons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the jurisdiction of the court, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in its discretion proceed in the cause without making such persons parties, but in such cases the decree is without prejudice to the rights of the absent party. In this case the heirs of Walter B. Crane were not made parties to the bill presumably because jurisdiction would thereby be ousted, but no objection was made to proceeding in their absence, and so far as these defendants are concerned, complainant, if otherwise entitled, was properly allowed to go to a decree of sale and foreclosure as to them, as claiming the equity of redemption or title to that part of the real estate which stood in the name of Crane. And as the decree was operative to this extent, we think it may be sustained in respect of the accounting for the conversion of that which rendered the se- [237 curity valuable. It is admitted that Crane and his wife, who alone survives him, executed the mortgage, and that the indebtedness is unpaid, | review a judgment of that court, convicting while it is evident upon this record that the firm is insolvent. Under these circumstances we are unable to conclude that appellants are entitled to in sist upon an objection in this court, to sustain which would curtail the relief to which appellee was entitled as against them or overthrow the jurisdiction of the circuit court. Keller v. Ashford, 133 U. S. 610, 626 [33: 667, 674], and cases cited. Decree affirmed. CLYDE MATTOX, Piff. in Err., v. UNITED STATES. (See S. C. Reporter's ed. 237-201.) Jurisdiction of district court-evidence on former trial-constitutional provision-impeaching testimony. Clyde Mattox of the murder of one John Mullen, committed Dec. 12, 1889, within that part of the Indian territory lying north of the Canadian river and east of Texas and the 100th meridian, not set apart and occupied by the Cherokee, Creek, and Seminole Indian tribes. Affirmed. See same case before this court, 146 U. S. 140 [36:917]. Statement by Mr. Justice Brown: Plaintiff in error was convicted on January 16, 1894, in the District Court of the United States for the District of Kansas, of the murder of one John Mullen, which was alleged to have been committed on December 12, [238 1889, "within that part of the Indian territory lying north of the Canadian river and east of Texas and the 100th meridian, not set apart and occupied by the Cherokee, Creek, and Seminole Indian tribes, the same being a place and district of country under the exclusive jurisdiction of the United States, 1. The United States District Court for the District and within the exclusive jurisdiction of this of Kansas had jurisdiction of the offense of homi- court." The indictment was returned to the cide committed in December, 1889, in that part of September term, 1891, of the district court at the Indian territory annexed by the Act of Jan-Wichita, at which term defendant was first uary 6, 1883 (22 Stat. at L. 400) to the United States tried and convicted. From this conviction Judicial district of Kansas. he sued out a writ of error from this court, which reversed the judgment of the district court and remanded the case for a new trial. 146 U. S. 140 [36: 917]. The case was continued until the December term, 1893, at which term plaintiff was again put upon his trial, and again convicted, whereupon he sued out this writ of error. 2. Where two of the witnesses for the government on the former trial of an indictment for murder have since died, a transcribed copy of the upon such trial supported by his testimony that it was correct, is admissible in evidence against the accused on the second trial of the indict reporter's stenographic notes of their testimony ment. 8. The constitutional provision that the accused shall be confronted with the witnesses against him" is not infringed by permitting the testimony of witnesses sworn upon the former trial of the same indictment, who have since died, to be read against him. 4. Where a witness in a criminal trial has died since the trial and thereafter on a second trial of the same case his testimony given on the first trial is read in evidence, statements made by him since the first trial that his testimony on that trial was false cannot be given in evidence to impeach such testimony. [No. 667.] Argued and Submitted Oct. 23, 1894. Leave Granted to Re-submit Dec. 3, 1894. submitted Dec. 10, 1894. Decided Feb. 4, 1895. Messrs. L. T. Michener, W.W. Dudley, Gen. for defendant in error. Mr. Justice Brown delivered the opinion of the court: Error is assigned to the action of the court below, (1) in assuming jurisdiction of the case; (2) in not remitting the indictment to the circuit court for trial; (3) in admitting to the Re-jury the reporter's notes of the testimony of two witnesses at the former trial, who had since died; (4) in refusing to permit the defendant to introduce the testimony of two witnesses to impeach the testimony of one of the N ERROR to the District Court of the Kansas ground (239 NOTE.-As to competency of witnesses in United States courts in civil cases; how far governed by state laws, see note to Vance v. Campbell, 17: 168. That persons jointly indicted cannot be witnesses for each other; exceptions to the rule; when wife of one may be, see note to United States v. Reid, 13: 1023. As to what proof can be introduced, after impeachment of witness by contradictory statement made out of court, that he has made statements consistent with his evidence, see note to Conrad v. Griffey, 13: 779. As to evidence of contradictory statements made by witnesses to impeach; in regard to what facts, inquired of on cross-examination, the witness may be contradicted, see note to Ellicott v. Pearl, 9: 475. that the proper foundation bad not been laid. We proceed to the consideration of these as signments in their order: 1. The offense was alleged in the indictment to have been committed "within that part of the Indian territory lying north of the Canadian river and east of Texas and the 100th meridian, not set apart and occupied by the Cherokees, Creeks, and Seminole Indian tribes. By section 2 of the Act of January expressly "annexed to" and declared "to con6, 1883 (22 Stat. at L. 400) this territory was stitute a part of the United States judicial district of Kansas." It is true that, by the Act of May 2, 1890, creating the territory of Oklahoma (26 Stat. at L. 81, § 9) jurisdiction over the territory in question was vested in the | been ruled out, obviously because it was not district courts of that territory, but with a the case of a deceased witness, nor one where reservation that "all actions commenced in there had been an opportunity for cross examisuch courts" (viz. courts held beyond and nation on a former trial between the same outside the limits of the territory) and parties, the case is nevertheless cited by Peake crimes committed in said territory, and in the in his work on evidence (p. 90) as authority for Cherokee Outlet, prior to the passage of this the proposition that the testimony of a deAct, shall be tried and prosecuted, and pro- ceased witness cannot be used in a criminal ceeded with until finally disposed of, in the prosecution. The rule in England, however, courts now having jurisdiction thereof, as if is clearly the other way. Bull. N. P. 242; Rex this Act had not been passed." As the homi- v. Joliffe, 4 T. R. 285, 290; Rex v. Radbourne, cide in question was committed in December, 1 Leach, C. C. 512; Rex v. Smith, *2 [241 1889, there can be no question but that it Stark. 208; Buckworth's Case, T. Ray m. 170. As was properly cognizable in the judicial dis- to the practice in this country, we know of none trict of Kansas. Indeed, this point is disposed of the states in which such testimony is now of by the decision of this court in Caha v. held to be inadmissible. In the cases of Finn United States, 152 U. S. 211 [38: 415]. V. Com. 5 Rand. (Va.) 701; Mendum v. Com. 6 Rand. (Va.) 704, and Brogy v. Com. 10 Gratt. 722, the witnesses who had testified on the former trial were not dead, but where out of the state, and the testimony was held by the court of appeals of Virginia to be inadmissible, though the argument of the court indicated that the result would have been the same if they had been dead. In the case of State v. Atkins, 1 Overt. 229, the former testimony of a witness since deceased was rejected by the supreme court of Tennessee, but this case was subsequently overruled in Kendrick v. State, 10 Humph. 479, and testimony of a deceased witness taken before a committing magistrate was held to be admissible. See also Johnson v. State, 2 Yerg. 58; Bostick v. State, 3 Humph. 344. The rule in California was formerly against the admission of such testimony (People v. Chung Ah Chue, 57 Cal. 567; People v. Inrise, 59 Cal. 343) but it is now admitted under a special provision of the code applicable to absent and deceased witnesses, which is held to be constitutional. People v. Oliver, 66 Cal. 101. In the case of State v. Campbell, 1 Rich. L. 124, the testimony of a deceased witness had been taken before a coroner, but in the absence of the accused, and of course it was held to be inadmissible. 2. We are also of opinion that there was no error in not remitting the indictment to the circuit court for trial, and in assuming jurisdiction of the entire case. Rev. Stat. 1039, requiring indictments in capital cases, presented to a district court, to be remitted to the next session of the circuit court for the same district, and there to be tried, has no application to this case, since the subsequent Act of January 6, 1883 (22 Stat. at L. 400) to which we have already called attention, vests in the United States district courts at Wichita and Fort Scott in the district of Kansas "exclusive original jurisdiction of all offences committed within the limits of the territory hereby annexed to said district of Kansas, against any of the laws of the United States." This Act 240] should be read as a qualification *of section 1039, or a repeal pro tanto of the requirement that indictments shall be remitted to the circuit court for trial. A district court could not be said to have "exclusive original jurisdiction" of a case which it was obliged to remit to another court for trial. 3 Upon the trial it was shown by the gov ernment that two of its witnesses on the former trial, namely, Thomas Whitman and George Thornton, had since died, whereupon a transcribed copy of the reporter's stenographic notes of their testimony upon such trial, supported by his testimony that it was correct, was admitted to be read in evidence, and constituted the strongest proof against the accused. Both these witnesses were present and were fully examined and cross-examined on the former trial. It is claimed, however, that the constitutional provision that the accused shall be confronted with the witnesses against him" was infringed, by permitting the testimony of witnesses sworn upon the former trial to be read against him. No question is made that this may not be done in a civil case, but it is insisted that the reasons of convenience and necessity which excuse a depart ure from the ordinary course of procedure in civil cases cannot override the constitutional provision in question. The idea that this cannot be done seems to have arisen from a misinterpretation of a ruling in the case of Sir John Fenwick (13 How. St. Tr. 579 et seq) which was a proceeding in Parliament in 1696 by bill of attainder upon a charge of high treason. It appeared that Lady Fenwick had spirited away a material witness, who had sworn against one Cook on his trial for the same treason. His testimony having Upon the other hand, the authority in favor of the admissibility of such testimony, where the defendant was present either at the examination of the deceased witness before a committing magistrate, or upon a former trial of the same case, is overwhelming. The question was carefully considered in its constitutional aspect by the supreme judicial court of Massachusetts in Com. v. Richards, 18 Pick. 434, 29 Am. Dec. 608, in which it was said that "that provision was made to exclude any evidence by deposition, which could be given orally in the presence of the accused, but was not intended to affect the question as to what was or was not competent evidence to be given face to face according to the settled *rules of the[242 common law." The subject was also treated at great length by Judge Drummond in United States v. Macomb, 5 McLean, 286, and the substance of a deceased witness' testimony given at a preliminary examination held to be admissible. All the cases up to that time were cited in the opinion, and the decision put upon the ground that, the right of cross-examination having once been exercised, it was no bardship upon the defendant to allow the testimony of the deceased witness to be read. From the following list of cases it will be seen that the |