1. In respect to the demun-cr to the third plea, that “will be considered as waived, and the parties under* stood to have gone to trial, without requiring an issue to bo made up.” [1 Ala. Rep. 155, N. g.]
2. The commission to take a deposition, is the warrant by which the persons to whom it is addressed are authorised to examine the witness, and to make the testimony admissible, it should be taken and certified by the commissioners specially designated,- and at the time appointed for the purpose. [Worsham v. Goar, 4 Porter’s Rep. 441.] In Campbell & Webb v. Woodcock, 2 Ala. Rep. 41, it was held that acommission addressed to 8. orany justice of the peace of L. county, &c. did not authorise any one' but S. to take the deposition. [Collins v. Fowler, [4 Ala. Rep. 647. See also, 3 Wash. C. C. Rep. 404; 4 id. 215-9.]
In the present case, the commission is an authority to Barnham and Carr, or either of them, but it is executed by Barham alone. This latter name is very different from that of either of the commissioners, and it cannot be assumed that he is the same person-as Barnham, merely from the fact, that he has the same Christian name. Whether it would be competent to prove their identity by extrinsic proof, is a question not presented for our decision? in the posture in which the question comes up, we are satisfied that the depositions were' rightly excluded.
3. The evidence ofGave’s interest, was not such as authorised his rejection as a witness. Although he was a stockholder in the Real Estate Banking Company, there is no sufficient proof that Nance was the agent of that association. It was not shown that he acted in that character, but merely that he was reputed to be its agent. This is a fact which, if it existed, should have *682been proved by evidence more satisfactory than reputation, in the usual acceptation of that term. But if the fact of agency had been established, the proof that the Banking Company was interested in the result of this suit, is altogether insufficient; for,it by no means follows that the principal is necessarily interested in every judgment recovered by the agent in his own name. This would be to maintain, that by taking upon- one’s-self the character of agent, he is incapable of dealing upon his own account, and relinquishes to the principal all judgments and other claims which may be in his favor, or stand in his name.
4. It is unnecessary to consider whether the charge prayed by the plaintiff’s counsel, should have been given or not. Its refusal did not injuriously affect them; for if the jury did not believe the pleas of justification to be true, they must have been satisfied that the plaintiffs failed to make out their entire case. And whether the justifications were sustained by the defendant or not, the plaintiffs certainly failed to prove the trespass as to the mules.^This is all shown from the state of the pleadings — the general issue negativing the cause of action in toto.
The pleas are all well pleaded, and if demurred to, would be adjudged good. There is then no reason perceivable why the plaintiffs should be allowed to object, that the charge asked for, was not given. The judgment of the circuit court must be affirmed.