LIGON, J.
The errors assigned in this case relate, 1st, to the rejection of the deposition of the witness Thomas ; and, 2nd, to the charges given and refused by the court.
1. In relation to the deposition of Thomas, the plaintiff moved its suppression on the trial, for supposed irregularities in the dedimus, in the notice to the plaintiff, the affidavit to procure its issue, and the certificate of the commissioner who took it.
The first objection is founded on the manner in which the parties to the suit are stated in the dedimus. The style of the case is there set out, as “ Thomas K. Beck plaintiff, and James T. Reese defendant;” when the writ and declaration are in the name of Thomas K. Beck, as executor of Ephraim Pharr, deceased. We are inclined to think this objection entirely too technical to be allowed to prevail in any case, as the commission may be amended by the other parts of the record, which clearly show in what character the plaintiff sues.—Jordan v. Hazzard, 10 Ala. 221; Evans v. Norris, 1 Ala. 511. In the case under consideration, the commission issued on interrogatories filed in the office of the clerk, which are required to accompany it. To these’ we may well look, in order to supply any omission of the clerk in stating the style of the case in the dedimus, as well as to the affidavit on which it issues. In both the interrogatories and the affidavit accompanying this commission, the style of the case is set out as it is in the writ and declaration.
The objection to the affidavit cannot be sustained. It is made by the attorney for the defendant, sets out that the testimony of the witness is material to the defendant, and that the affiant has been informed and believes that the witness is unable to attend court because of sickness and great bodily infirmity. The reason why the deposition of the witness is sought, is one of the grounds on which it is allowable to take the depo[659]*659sition of a resident witness. The bodily infirmity of the witness need not, as it is supposed, be referable only to his age, before the law will excuse his personal attendance, and authorize his deposition to be taken. His inability to attend court arising from bodily infirmity, superinduced from any cause, is sufficient. The deposition is only de lene esse, at best, and may be excluded, if, at the time of the trial, it is made to appear to the court, that the witness has been relieved, and is able to give his personal attendance. — Sess. Acts 1849-’50, p. 73, § 1.
The fact that the affidavit is made by the attorney, and not the party himself, does not vitiate it.—Brahan v. Debrill, 1 Stew. 14; Sess. Acts 1849-’50, § § 1-6, p. 73.
The objection taken to the notice of filing the interrogatories, and suing out the commission, is equally unavailing. It appears at the foot of the interrogatories, in the margin of which the style of the case is correctly stated, and is addressed to Messrs. Rice & Morgan. It is objected that it does not style these gentlemen attorneys for the plaintiff, and that it appears to have been served by the sheriff on John T. Morgan, Esq. Unless notice is denied to have been received by the party entitled to it, the court will not look into the manner or form in which it was given.—Milton v. Rowland, 11 Ala. 732. We think, however, that this record shows affirmatively that notice in writing was given to the plaintiff’s attorneys. It is true, they are not styled attorneys at law, in the notice itself; but upon reference to the declaration we perceive it is filed by Rice & Morgan, to whom, by their firm name, this notice is addressed, and the court will presume, in the absence of any denial on their part, that it was addressed to them in the same character in which they filed the declaration in this case. For the same reason, that is, a failure to deny the fact by the plaintiff or his attorneys, we will presume that the sheriff did his duty, and that the John T. Morgan named in his return, is the partner of the firm of Rice & Morgan. Had this been denied in the court below, the sheriff might have been allowed to amend his return, and thus remove all ambiguity, for it amounts to nothing more. The last reason given against the propriety of allowing this deposition to be read, is predicated on the third section of the act of 1849-50, Sess. Acts p. 73-4, which prescribes how depositions under that act shall he taken, and among other [660]*660things directs, that “ the commissioner shall, under his hand and seal, below the testimony, or on some convenient place in the papers, certify to the clerk of the proper court, or to the justice, that the evidence of the witness was taken down under oath, and subscribed by him in his presence, at a time and place appointed by him,” &c.
The deposition which the court below suppressed in this case, is taken with strict regard to every requirement of this statute, except in respect to the seal of the commissioner. No objection lies to the competency of the witness, or the relevancy of the evidence. The defect complained of is a mere irregularity of the form in which the relevant evidence, of a competent witness, is attested by the commissioner who took it under lawful authority. In other words, it is a defect of form •, but this form is required by the statute, and the certificate is incomplete without it. If the objection had been taken at the proper time, it might probably have been allowed to prevail. But under the more recent decisions of this court, it is now well settled, that objections made to a deposition for irregularities in taking.it, come too late when made for the first time at the hearing or trial of the cause.—Jourdan v. Jourdan, 17 Ala. 466; Colgin v. Redman, 20 Ala. 650.
For these reasons, wo think, the court below erred in suppressing the deposition of the witness Thomas.
2. The next assignment of error is predicated upon the second affirmative charge of the court, which is in these words : “ If they (the jury) believe from the evidence, that the contract between Ephraim Pharr and Mrs. Bell was, that she was to keep the boy during the year 1846, and at the end of that year had her choice to keep the negro on paying $700, or to return him and pay $100 for his hire ; and that sometime in the month of November of that year she expressed her willingness to the plaintiff to take the boy at $700, and the plaintiff repudiated the contract, yet this did not dispense with the necessity of Mrs. Bell’s making a tender at the end of the year 1846 ; and if the tender was not made, then the plaintiff was not entitled to recover.”
This charge cannot bo supported. The evidence tends strongly to show, that the contract between Pharr and Mrs. Bell amounted to a conditional sale of the slave in controversy [661]*661by the former to the latter, by which the latter was allowed until the end of the year 1846 to determine whether it should become absolute. The testimony also conduced to show, that in- November, 1846, (Pharr having died in the meantime, and the plaintiff having become his executor,) Mrs. Bell made her election, and announced to the plaintiff her determination to retain the slave, and treat the contract as a sale, and not as a bailment by way of hire, at the same time offering to perform her part of the contract of sale; but the plaintiff repudiated the contract of his testator. From this moment the title to the slave vested absolutely in Mrs.
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LIGON, J.
The errors assigned in this case relate, 1st, to the rejection of the deposition of the witness Thomas ; and, 2nd, to the charges given and refused by the court.
1. In relation to the deposition of Thomas, the plaintiff moved its suppression on the trial, for supposed irregularities in the dedimus, in the notice to the plaintiff, the affidavit to procure its issue, and the certificate of the commissioner who took it.
The first objection is founded on the manner in which the parties to the suit are stated in the dedimus. The style of the case is there set out, as “ Thomas K. Beck plaintiff, and James T. Reese defendant;” when the writ and declaration are in the name of Thomas K. Beck, as executor of Ephraim Pharr, deceased. We are inclined to think this objection entirely too technical to be allowed to prevail in any case, as the commission may be amended by the other parts of the record, which clearly show in what character the plaintiff sues.—Jordan v. Hazzard, 10 Ala. 221; Evans v. Norris, 1 Ala. 511. In the case under consideration, the commission issued on interrogatories filed in the office of the clerk, which are required to accompany it. To these’ we may well look, in order to supply any omission of the clerk in stating the style of the case in the dedimus, as well as to the affidavit on which it issues. In both the interrogatories and the affidavit accompanying this commission, the style of the case is set out as it is in the writ and declaration.
The objection to the affidavit cannot be sustained. It is made by the attorney for the defendant, sets out that the testimony of the witness is material to the defendant, and that the affiant has been informed and believes that the witness is unable to attend court because of sickness and great bodily infirmity. The reason why the deposition of the witness is sought, is one of the grounds on which it is allowable to take the depo[659]*659sition of a resident witness. The bodily infirmity of the witness need not, as it is supposed, be referable only to his age, before the law will excuse his personal attendance, and authorize his deposition to be taken. His inability to attend court arising from bodily infirmity, superinduced from any cause, is sufficient. The deposition is only de lene esse, at best, and may be excluded, if, at the time of the trial, it is made to appear to the court, that the witness has been relieved, and is able to give his personal attendance. — Sess. Acts 1849-’50, p. 73, § 1.
The fact that the affidavit is made by the attorney, and not the party himself, does not vitiate it.—Brahan v. Debrill, 1 Stew. 14; Sess. Acts 1849-’50, § § 1-6, p. 73.
The objection taken to the notice of filing the interrogatories, and suing out the commission, is equally unavailing. It appears at the foot of the interrogatories, in the margin of which the style of the case is correctly stated, and is addressed to Messrs. Rice & Morgan. It is objected that it does not style these gentlemen attorneys for the plaintiff, and that it appears to have been served by the sheriff on John T. Morgan, Esq. Unless notice is denied to have been received by the party entitled to it, the court will not look into the manner or form in which it was given.—Milton v. Rowland, 11 Ala. 732. We think, however, that this record shows affirmatively that notice in writing was given to the plaintiff’s attorneys. It is true, they are not styled attorneys at law, in the notice itself; but upon reference to the declaration we perceive it is filed by Rice & Morgan, to whom, by their firm name, this notice is addressed, and the court will presume, in the absence of any denial on their part, that it was addressed to them in the same character in which they filed the declaration in this case. For the same reason, that is, a failure to deny the fact by the plaintiff or his attorneys, we will presume that the sheriff did his duty, and that the John T. Morgan named in his return, is the partner of the firm of Rice & Morgan. Had this been denied in the court below, the sheriff might have been allowed to amend his return, and thus remove all ambiguity, for it amounts to nothing more. The last reason given against the propriety of allowing this deposition to be read, is predicated on the third section of the act of 1849-50, Sess. Acts p. 73-4, which prescribes how depositions under that act shall he taken, and among other [660]*660things directs, that “ the commissioner shall, under his hand and seal, below the testimony, or on some convenient place in the papers, certify to the clerk of the proper court, or to the justice, that the evidence of the witness was taken down under oath, and subscribed by him in his presence, at a time and place appointed by him,” &c.
The deposition which the court below suppressed in this case, is taken with strict regard to every requirement of this statute, except in respect to the seal of the commissioner. No objection lies to the competency of the witness, or the relevancy of the evidence. The defect complained of is a mere irregularity of the form in which the relevant evidence, of a competent witness, is attested by the commissioner who took it under lawful authority. In other words, it is a defect of form •, but this form is required by the statute, and the certificate is incomplete without it. If the objection had been taken at the proper time, it might probably have been allowed to prevail. But under the more recent decisions of this court, it is now well settled, that objections made to a deposition for irregularities in taking.it, come too late when made for the first time at the hearing or trial of the cause.—Jourdan v. Jourdan, 17 Ala. 466; Colgin v. Redman, 20 Ala. 650.
For these reasons, wo think, the court below erred in suppressing the deposition of the witness Thomas.
2. The next assignment of error is predicated upon the second affirmative charge of the court, which is in these words : “ If they (the jury) believe from the evidence, that the contract between Ephraim Pharr and Mrs. Bell was, that she was to keep the boy during the year 1846, and at the end of that year had her choice to keep the negro on paying $700, or to return him and pay $100 for his hire ; and that sometime in the month of November of that year she expressed her willingness to the plaintiff to take the boy at $700, and the plaintiff repudiated the contract, yet this did not dispense with the necessity of Mrs. Bell’s making a tender at the end of the year 1846 ; and if the tender was not made, then the plaintiff was not entitled to recover.”
This charge cannot bo supported. The evidence tends strongly to show, that the contract between Pharr and Mrs. Bell amounted to a conditional sale of the slave in controversy [661]*661by the former to the latter, by which the latter was allowed until the end of the year 1846 to determine whether it should become absolute. The testimony also conduced to show, that in- November, 1846, (Pharr having died in the meantime, and the plaintiff having become his executor,) Mrs. Bell made her election, and announced to the plaintiff her determination to retain the slave, and treat the contract as a sale, and not as a bailment by way of hire, at the same time offering to perform her part of the contract of sale; but the plaintiff repudiated the contract of his testator. From this moment the title to the slave vested absolutely in Mrs. Bell; and if it had died between that period and the 1st day of January, 1847, there can be no question that the loss would have fallen on her, and the death of the slave would have formed no defence in an action against her by the present plaintiff, in his representative capacity, for the purchase money. — McLeod v. Powe & Smith, 12 Ala. 9. This charge is essentially erroneous, in confining Mrs. Bell’s right of election to the last of the year 1846. She had the right to determine whether she would treat the contract as a sale, at any time after it was made, and before the end of the year. If she did make her election in November, the sale was complete, and the end of the year had nothing more to do with the contract, except to fix the time when the purchase money should fall due. Under this charge, the jury were prohibited from looking to, and passing upon, the testimony of Mrs. McMeans and other witnesses, who had testified in relation to the conversation and conduct of Mrs. Bell and the plaintiff in November, 1846, and of saying whether what occurred at that time amounted to an election by the latter to treat the contract as a sale, and an offer on her part to perform its stipulations, from which she was hindered- by the defendant, who repudiated the contract altogether. The charge confines the right of Mrs. Bell to perform the terms of the agreement on her part to a single day, when we think she might have made her election, and paid or tendered the purchase money, on the last day of the year, or at any time subsequent to the date of the agreement and the last day of the year. In the case of McLeod v. Powe & Smith, supra, the agreement between the parties, as it is recited by the court, was, that the money should be paid on the 1st day of January, 1844, and the only proof of tender
[662]*662was on the 26th day of December, 1843 ; yet this was held to be sufficient to vest the title of the slaves in the vendee, and left the vendor only his right of action for the purchase money. So, in the present case, if the testimony is sufficient to show-an offer by Mrs. Bell to pay the purchase money, in November, and a refusal by Beck to receive it, it would have been all that could be required to be done to vest the title of the slave in her, without the necessity of again offering to make the payment on the last day of the year. This part of the case, with proper directions as to what would amount to a tender on the part of the vendee, and what acts of the plaintiff would amount to a waiver of the necessity of a' formal tender, should have been submitted to the jury. The vice of the charge under examination, is, that this was not only not done, but the jury were virtually instructed that this proof had nothing to do with the point in issue between the parties. We express no opinion as to the eonelusiveness of the proof in relation to the tender of the money, or the offer to perform her part of the contract by Mrs. Bell, in the month of November, 1846 ; that is a matter for the jury. We only decide that she had the right, under the contract, to make the tender at that time, and if it was made and refused, she was not bound to renew it on the last day of the'year.
3. The charge asked by the defendant, was correctly refused by the court. All charges must be given with reference to the proof in the case, and when asked by either party, or affirmatively given by the court, should be so framed as not to exclude from the consideration of the jury any portion of the evidence which might exert an influence over their verdict. There is some evidence in this record in relation to a rescission of the contract between Pharr and Mrs. Bell. The testimony on this point is said to have been conflicting. The charge asked demands a verdict for the defendant, without reference to the fact as to whether the contract had or had not been rescinded by the parties- The court was not bound to qualify it, and without this qualification it was correctly refused-
For the errors heretofore pointed out, the judgment must be reversed, and the cause remanded,