I concur in the opinion in so far as it holds that § 491, Title 7, Code 1940, as amended, applies to an adverse party as a *Page 471 witness and is not violative of § 5 of the Constitution of 1901.
However, I am of the opinion that the peremptory writ of mandamus should issue for the reason that the affidavit filed in support of the application to perpetuate testimony was insufficient to confer upon Judge Hawkins jurisdiction to issue the order to perpetuate the testimony of petitioner. My views are expressed in my dissenting opinion in Ex parte Duggan, ante, p. 453, 64 So.2d 52.