LESNE v. POMPHREY, 4 Ala. 77

ORMOND, J. The act authorising the deposition of an absent witness to be taken, is to the following effect: “When a person who may be a witness in any cause, in any of the courts, shall reside out of this Territory, or shall, by reason of age or bodily infirmity, or any other cause, be incapable of attending to give his or her testimony in court, oath thereof being made to any Judge, Justice or Clerk of the Court where such suit is depending, such Judge, Justice tor Clerk, is hereby empowered to issue, &c.

Provided, that the party praying such commission, shall give such notice to the adverse party of the time and place, when and where,such commission is to be executed, as the Court, Judge, Justice or Clerk shall .think proper.” [Aik. Dig. 126.] We think it quite clear that the act requires that the name of the witness whose deposition is proposed to be taken should be inserted in the affidavit. Unless this is done how can the Clerk issue a commission to take the deposition of the witness, the authority for doing which is the affidavit.

The language of the act is, that upon affidavit being made, a commission shall be issued to take the testimony of “such witness.” An affidavit that some of the plaintiff’s witnesses reside out of the State, does not establish that the particular witnesses whose depositions were taken are in that predicament, and was therefore not sufficient to authorize the issuance of the commission to take their depositions.

The party taking such deposition is also required to give such notice of the time and place where the deposition is to be taken to the adverse party as the “Court, Judge, Justice or Clerk shall think proper.” In this case, the Clerk issuing the commission did not state what notice should be given. In the case of Parker v. Hagerty, [1 Ala. Rep. 632,] the Clerk had omitted to require what notice should be given, but it was proved to the court that the notice actually given was sufficient, and we held that the deposition was properly read in evidence to the jury.

The notice given in this case was five days, and no attempt was made to prove that it was sufficient. This, under the authority of ihe case just cited, it was necessary the plaintiff should have done, as the Clerk, who is Uy law made the judge of the time to be given, it appears did not act. The judgment must therefore be reversed and the cause remanded.