Ables v. Miller. , 12 Tex. 109 ( 1854 )

Lipscomb, J.

The first and main objection, relied on by the appellants, to the judgment of the Cour^below, is to the ruling of the Court, in admitting, as evidence, the deposition of a witness, taken properly, on the ground of his not being a resident citizen of the county where the suit was instituted and tried, but who had, before the trial, moved into that county. It was admitted on the ground, supported by the affidavit of the plaintiff’s counsel, that the plaintiff was absent from the State, and that the witness, when deposition was offered, was absent from the county. There is no objection to the deposition being properly taken ; and the only objection is to its admissibility The witness having become a citizen of the county where the suit was tried, we believe the objection is not available. If legally taken, it was admissible. It would be unreasonable to require a party to keep his eye on the witness, after his testimony had been taken, and to make it his duty to put the witness under subpoena, should he move into the county. It is not a case of testimony taken de bene esse, under the statute, of an infirm witness or one about to leave the country.

The appellants further object, that the affidavit of the counsel was not sufficient, that it ought to have been made by the party himself; and we are referred to the case of Givens v. Taylor, Hart & Co., 6 Tex. 815. That was altogether a different question. In that case it was decided that under the statute, (Art. 50, Hart. Dig.) the affidavit to put in issue and controvert the answer of a gonishee must be made by the party himself, and not by his counsel.

We see no ground of error in the charge of the Judge to the jury, that appellants can complain of. If the Judge erred at all, it was in the appellants’ favor. The Court did not err in overruling the motion for a new trial, and the judgment is affirmed.

Judgment affirmed.