Ex Parte Cross

FOSTER, Justice.

The controversy here relates to an effort by the petitioner, to whom we will refer as plaintiff, to perpetuate the testimony of a witness under sections 491 et seq., Title 7, Code of 1940. Those statutes have remained the same in all our codes, including the first, 1852. Section 492 is as follows:

“The applicant must make affidavit before a circuit or probate judge, or register stating:

“That he is a party or expects to be a party, to a suit, either at law or equity, in a court of this state.

“That the testimony of a witness, whose name and place of residence is stated, is…