
    Ails vs. Sublit.
    
      October 20.
    , de^fitiontaken de bene ejji, proofof the wítnef» °toi*c-tend, fljould be made.
    witnefs*1 wario years old when ⅛⅛ depofition then^appéared infirm, is not Sufficient.
    party Wu-ten to his attorney that he tdtneivrd was dead,is not fuffi, dent.
   OPINIONof the Court,by

Judge Owsley

-During die progress of this cause in the court below, Siiblir, who was plaintiff in that court, obtained an order to take deposition of George Cardwell de bene esse. The deposition was accordingly táken, and on the trial offered in evidence to the jury. Ails objected to its admission; to obviate the objection Subiit proved that; .Cardwell was about 64 years old when his deposition was taken, and that tie appeared then infirm; and also a letter written by Sublit to his attorney was produced, giving intelligence that he had a few days before been informed Cardwell was dead. The objection to the deposition being used as evidence was overruled, and deposition admitted. The ques.ion is, should the deposition jiave been rejected? To authorise the admission of the deposition as evidence, it evidently devolved on Sublit to prove, by 'competent proof, the death of Cardwell, or his inability to attend the trial. We think, however, that neither of those facts were established. It is clear the letter written by Sublit to his attorney, was not admissible evidence to prove Card-well’s death ; and it is equally obvious the proof made as to the infirmity of the witness some time before the trial, was not sufficient to prove his inability to attend on the trial of the cause. We think, therefore, that the court erred in permitting the deposition to be used as evidence.

The judgment must be reversed with costs, and the cause remanded for a new trial to be had in that court.  