The opinion of the Court was delivered by

This is an action on the case, for a malicious prosecution, in indicting the plaintiff without reasonable or probable *152cause, for an assault, with an intent to kill and murder. The in-' dictment against Cotton, was returned by the grand jury, ignoramus, but as no prosecutor was indorsed, it became necessary to prove aliunde,, that the defendant, Huide7coper, was the prosecutor. For this, and other purposes, depositions were taken on notice, for the exclusion of parts of which, errors are assigned. And first, as to the part of the deposition of David Horn, which states, “that as Harm Jan Huidekoper was on his way to Warren, as deponent understood, by the said Huidekoper, to prosecute said Cotton, for shooting said Huidekoper, said Huidekoper told deponent, &c.

This is a common mode of expression; and is, in my opinion,, equivalent to saying, “that Huidekoper had told himhe was on his way to Warren, to prosecute Cotton. I agree with Justice Duncan, that if depositions taken in the country, were strictly scanned, most of them must be rejected. The words of the witness were not used in their grammatical sense, but in common parlance, and must be construed according to the general understanding, and particularly in the case of depositions taken in the country, before persons unskilled, inapt, and without the aid of counsel. It is common, when it is desired to carry the idea of what you have heard others say, to make use of these expressions: I understood him to say: or, I understood from him, or I understood of him, or as in this case — that as Harm Jan Huidekoper was on his way to Warren, as deponent understood, by the said Huide-koper, to prosecute said Cotton, for shooting said Huidekoper, &c. It is not open to the objection, that this understanding of his, may have been derived from the information of others. The witness says, he understood this by the said Huidekoper; so that all the knowledge he had of the transaction, and of Huidekoper’s views in going to Warren, was attained from the defendant himself. It is said the expressions are equivocal; if so, they might have been explained, as the defendant had the opportunity to cross-examine, of which, if he did not choose to avail himself, it was his fault. At any rate, we think the evidence should have been submitted to the jury, and in this there would have been no danger, under proper directions from the Court, as to what attention should be given to the testimony, provided the jdry believed that the witness did not hear Huidekoper say, he was on his way to Warren to prosecute Cotton.

The rejection of Scott’s deposition, comes within the same principle.

Next we will consider the objection to the testimony of Messrs. Blossom and Wallace. The furthest the decisions have heretofore gone, is to admit a witness to testify to the substance of what another has sworn on a former trial. It has not been supposed to *153extend so far as .to ;permit proof of the substance of the whole testimony. And ¡even in such cases, the testimony has been received only where‘the witness is dead, or beyond the reach of process. It appears singular to me that this inferior and secondary proof should have been resorted to, when the witnesses were alive, and subject to the jurisdiction of the Court. The effect is, to deprive the plaintiff of the benefit of a cross-examination, to which we think, he is entitled. There was error, then, in allowing the witness to testify to the substance of the evidence given before Judge Hackney. To extend the rule further than has been already done, would .be attended with danger. As a general rule, the best evidence must be given, although, at the same time, we do not now say, that none but the witnesses who testified before Judge Hackney can '¡be examined; yet we are clearly of the opinion, that the substance of what each witness swore, must be given.

The plaintiff further alleges there was error in not responding distinctly and fully to the first, second, and fourth points submitted to the Court.

I shall confine my attention to the second point, which is most ■material, and in which, we rthink, the Court erred. That if the defendant participated voluntarily in the prosecution of the plaintiff, and i.t was carried on with his counsel, countenance and approbation, he is a partner in the transaction, and liable for the consequences, whether there were others who participated in it or not. This was an important question for the plaintiff, to which he was entitled to an affirmative answer. If he did participate in the prosecution, it is no excuse for him, under the circumstances of this case, to say, that others were equally engaged in conducting the prosecution. If two or more join in a prosecution, without reasonable or probable cause, one and rail are answerable in damages. It is joint and several. Besides, ¡even if it were otherwise, the tínly method by which the defendant could take advantage of the mis-joinder of the others, would be by plea in abatement, in which he would give the plaintiff a better writ. It cannot be permitted, that a wealthy man may indulge hie malice by using the name of others, and in this way escape the consequences. If the defendant participated voluntarily in the prosecution, and it was carried on with his approbation and with his counsel, he is liable in damages, whether there were others who were concern-, ed in it or not. This was the substance of the plaintiff’s second point, to which I discover no answer.

Judgment reversed and a venire de novo awarded.