The deposition, when offered as such, having been properly rejected because it was not recorded,1 it was next attempted to prove by it the declaration of the depo*254nent. To admit it for this purpose would be making the statute nugatory respecting depositions in perpetuam.1

Independently of this objection, however, by the law ol England it is clear, that this evidence was not admissible.2 It was not evidence of pedigree, reputation, prescription, or custom.

A case of the same nature occurred in one of the western counties. The question related to the citizenship of a man who had deserted from Burgoyne’s army. Evidence was offered of his saying that he was born in Germany; but it was rejected on the same ground, not being evidence of pedigree, &c.3

The provincial act of 4 Will. Mar. c. 13, required several steps to be taken in regard to warning a person to leave a town, of which a return was to be made to the Court of Sessions. The records in the present case were lost, and inferior evidence might, therefore, have been admitted. But here was evidence of a single fact only, which would, not show that all the requisite steps had been taken, even if the evidence were admissible.

Judgment according to the verdict.