
    *Chapman v. Chapman.
    Spring Vacation,
    1809.
    Depositions — Notice of Taking Given to Overseer of Party — Effect.’'—A notice to take a deposition, given to the overseer of the party, who resided part of his time in the state and part out, is not sufficient.
    The principal question in this case was, whether notice given to the overseer of the defendant, who lived about half the year in, and the other half out of the state, to take depositions, was good.
    
      
      See monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
   By the Chancellor.

A notice to a party living within the state is good, if given to him, or delivered in writing to any free white person above the age of sixteen years, who shall be a member of the family of such person, and shall be informed of the purport of such notice, or left at some public place, at the dwelling-house or other known place of residence of such person; 1 Rev. Code, 113, Ent. 42, and to a party not living within the state, or not having an agent or attorney within the same, to whom it can be given, it shall be good if published in the Virginia Gazette, or in any other public newspaper printed within this Commonwealth, for four weeks successively, stating the time and place, when and where, the witness is to be examined, and the name of the witness, together with the names of the parties to the suit in which such witness is tobe examined. Ib. 280, s. 17. It is clear, therefore, that the notice in this case was not good, as it was not given to such an agent or attorney as was contemplated by the law; for it is not the duty of an overseer, according to the course of the country, to attend to such subjects, but if it was, the plaintiff should have proved it. But, as he has not, notice should have been published as directed by the last recited act; for, unless the defendant was known to be diving within the state, notice as directed by the first recited act would not be good.  