We are of opinion that the weight of authorities is for the admission of new proof, and recollect it was so settled last term.

The Chancellor further observed that this was not his own opinion.

Bayard, for the appellant, offered in evidence depositions taken under a rule of this court for depositions generally on four days notice. As proof of the notice, he also offered a deposition taken *264by the same justice fourteen days after the former, which proved notice to have been left at appellee’s house five days before taking the former depositions.

Wilson. The deposition which proves the notice is not evidence, for the rule does not extend to the taking the proof of notice, but the depositions of facts supposed to be material in the trial. This deposition was taken fourteen days after the rest, and was clearly without notice; yet appellee was entitled to his cross-examination of this witness. The proof of notice is always supposed to be evidence to the court (who must be satisfied of its sufficiency) as to the admissibility of depositions, and if it could be made before the commission, yet the nature of the case would require proof of other notices. Otherwise, a deposition must be read and believed in order to establish itself, which is begging the question, and at best a sophistical kind of proof. This is not the practice, and it cannot be established by authority, for notice is not given on examinations in England.

The depositions are not allowed in evidence because of the defect of proof of notice. The depositions were taken the sixth of July, and the proof of notice was not made until fourteen days after the examination, though the notice, if proved, was good.

Appellee had proved possession by one Hinds. Appellant’s counsel offered an indictment (for a forcible entry by Hinds on N. Poore’s possession of this ground) returned billa vera, upon which process had been returned non est {inventus], and Hinds is proved dead.

Bayard. It is evidence to rebut the evidence as to Hinds’ possession and to show it was tortious.

Wilson objected that appellee was not party to it, and an indictment is not evidence in a civil suit. If Hinds’ possession was tortious, it should be proved by testimony. This indictment might have been the effect of appellant’s oath, and there is no conviction on it.

It may be read to rebut Hinds’ possession.