clerk or other person designated or agreed upon and forwarded to him by mail or other usual channel of conveyance. [C. L. § 3946.

Cal. C. Civ. P. 2 2026.

The certificate that "witnesses appeared in person before me, and answered the interrogatories and cross-interrogatories herein, as appears by the

duly signed and sworn-to depositions hereunto annexed" is insufficient. Homberger v. Alexander, 11 U. 363; 40 P. 260.

3453. Commission not returned. Continuance, when. A trial or other proceeding must not be postponed by reason of a commission not returned except upon evidence satisfactory to the court, that the testimony of the witness is necessary, and that proper diligence has been used to obtain it. [C. L. § 3947.

Cal. C. Civ. P. 2027.

3454. Deposition may be used by either party. The deposition mentioned in this chapter may be used by either party on the trial or other proceeding, against any other party giving or receiving the notice, subject to all just exceptions. [C. L. § 3948.

Cal. C. Civ. P. 2028.

TAKEN IN THE STATE.

3455. Deposition in the state, taken when. The testimony of a witness in this state may be taken by deposition in an action, at any time after the service of the summons or the appearance of the defendant; and, in a special proceeding, after a question of fact has arisen therein in the following cases:

1. When the witness is a party in the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended. 2. When the witness resides out of the county in which his testimony is to be used.

3. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required.

4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend.

5. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required. [C. L. § 3943*.

Cal. C. Civ. P. ¿ 2021*.

Taking deposition on postponement of trial, % 3134.

3456. Id. Before whom taken. Notice and affidavit. Either party may have the deposition taken of a witness in this state, in either of the cases mentioned in the preceding section, before a judge or officer authorized to administer oaths, on serving upon the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, showing that the case is within that section. Such notice must be at least five days, adding also one day for every twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless, for a cause shown, a judge, by order, prescribe a shorter time. When the shorter time is prescribed, a copy of the order must be served with the notice. [C. L. § 3949.

Cal. C. Civ. P. 2031.

3457. Examination signed by witness. Custodian. Use on trial. Either party may attend the examination and put such questions, direct and cross, as may be proper. The deposition, when completed, must be carefully read to the witness and corrected by him in any particular, if desired; it must then be subscribed by the witness, certified by the judge or officer taking the deposition, inclosed in an envelope or wrapper, sealed and directed to the clerk of the court in which the action is pending, or to such person as the parties, in writing, may agree upon, and either delivered by the judge or officer to the clerk or such person, or transmitted through the mail or by some safe private means of conveyance; and thereupon such. deposition may be used by either party upon the trial or other proceeding against any party giving or receiving the notice, subject to all legal exceptions; but, if the parties attend at the examination, no

objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken under subdivisions two, three, or four of section thirty-four hundred and fifty-five, proof must be made at the trial that the witness continues absent or infirm, or is dead. The deposition thus taken may be also read in case of the death of the witness. [C. L. § 3950.

Cal. C. Civ. P. 2032.

3458. Deposition excluded for irregularity. Notwithstanding the taking of a deposition, it may be excluded from the case upon proof that sufficient notice was not given to the party against whom it is offered to enable him to attend the taking thereof, or that the taking was not in all respects fair. [C. L. § 3951.

Cal. C. Civ. P. 2 2033.

Deposition is not admissible against a party unless he has had opportunity of cross-examination. Newton v. Brown, 1 U. 287.

Where witness whose deposition was being taken refused, without cause, to answer a material question, whole deposition may be excluded. Hadra v. Utah Nat. Bank, 9 U. 412; 35 P. 508.

Depositions may be read though amendments to

the pleadings have changed the issues, where the subject matter remains the same. Anthony v. Savage, 3 U. 277; 3 P. 546.

Where a deposition is defective in any respect that can be remedied by retaking it, and no motion to suppress it is made, objection cannot be made thereto when the deposition is offered at the trial. Am. Pub. Co. v. Mayne Co., 9 U. 318; 34 P. 247.

3459. Deposition may be read by either party at any time. When a deposition has been once taken, it may be read by either party in any stage of the same action or proceeding, or in any other action between the same parties, upon the same subject, and is then deemed the evidence of the party reading it. [C. L. § 3952.

Cal. C. Civ. P. 2034.

3460. Deposition taken without notice if defendant in default. When the summons in an action has been served upon the defendant therein in the manner provided by law, and the time allowed such defendant to answer has expired, and he has in no way appeared in such action, the plaintiff may take the deposition of any witness without notice to such defendant, and such deposition may be introduced in evidence in the action, and shall have the same force and effect as a deposition taken upon notice.

Wis., S. & B. An. S. (1889) ? 4102*.

Personal

3461. Notice of publication against non-resident. service. When the party against whom the deposition is to be read is absent from or is not a resident of the state, and has no agent or attorney therein upon whom service may be made, notice of the taking of a deposition may be served upon him by publishing the same three times, once in each week for three successive weeks in some newspaper printed in the county where the action or proceeding is pending, if one is printed in such county; and if not, in some newspaper printed at the seat of government of this state. Personal service of the notice on the defendant out of the state shall be equivalent to such publication. Kansas (1889) 4448.

3462. Depositions to be used in other states. Any party to an action or special proceeding in a court or before a judge of another state or a territory, may obtain the testimony of a witness residing in this state to be used in such action or proceeding, in the cases mentioned in the next two sections. [C. L. $3953.

Cal. C. Civ. P. 2035.

3463. Id. District judge may subpoena witness before commissioner. If a commission to take such testimony has been issued from the court or a judge before whom such action or proceeding is pending, on producing the commission to a district judge, with an affidavit satisfactory to him of the materiality of the testimony, he may issue a subpoena to the witness, requiring him to

appear and testify before the commissioner named in the commission, at a specified time and place. [C. L. § 3954.

Cal. C. Civ. P. 2 2036.

3464. Id. Judge may take testimony without commission in certain cases. If a commission has not been issued, and it appears to a district judge, or justice of the peace, by affidavit satisfactory to him:

1.

That the testimony of the witness is material to either party;

2. That a commission to take the testimony of such witness has not been issued;

3. That, according to the law of the state or territory where the action or special proceeding is pending, the deposition of a witness taken under such circumstances, and before such judge or justice, will be received in the action or proceeding; he must issue his subpoena, requiring the witness to appear and testify before him at a specified time and place. [C. L. § 3955.

Cal. C. Civ. P. 2037.

3465. Id. How taken and certified. Upon the appearance of the witness, the judge or justice must cause his testimony to be taken in writing, and must certify and transmit the same to the court or judge before whom the action or proceeding is pending, in such manner as the law of that state or territory requires. [C. L. § 3956.

Cal. C. Civ. P. 2 2038.

Service by publication, ?? 2949, 2950.

CHAPTER 56.

PERPETUATING TESTIMONY.

3466. Testimony perpetuated as herein provided. The testimony of a witness may be taken and perpetuated as provided in this chapter. [C. L. $3966.

Cal. C. Civ. P. 2 2083.

3467. Verified petition, contents. Order for examination. Notice. The applicant must produce to a district judge, a petition verified by his oath stating:

1. That the applicant expects to be a party to an action in a court in this state, and in such case the names of the persons whom he expects will be adverse parties; or

2. That the proof of some fact is necessary to perfect the title to the property in which he is interested, or to establish marriage, descent, heirship, or any other matter which it may hereafter become material to establish, though no suit may at the time be anticipated, or if anticipated, he may not know the parties to such suit; and

3. The name of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved. The judge to whom such petition is presented must make an order allowing the examination, and desig nating the officer before whom the same must be taken, and prescribing the notice to be given, which notice, if the parties expectant are known and reside in this state, must be formally served, and if unknown, such notice must be served on the recorder of the county where the property to be affected by the evidence is situated, or the judge making the order resides, as may be directed by him, and by publication thereof in some newspaper, to be designated by the judge, for the same period required for the publication of summons. The judge must also designate in his order the clerk of the court to whom the deposition must be returned when taken. [C. L. § 3967.

Cal. C. Civ. P. ? 2084*.

3468. Authority of person appointed to take deposition. The person appointed by the judge to take the depositions is authorized, if a resident of this state, on receiving a copy of the order of the judge, and of the notice prescribed in the last section, with proof of its personal service or publication, or, if a resident without the state, on receiving the commission mentioned in the next section, with proof of like service or publication of the notice, to take the deposition of the witness named in the order of the judge, or in the commission, or if more than one witness is thus named, of such of them as appear before him, at the time designated, and to continue the taking of the same from time to time. [C. L. § 3968.

Cal. C. Civ. P. 2 2085.

3469. Examination. Manner of taking deposition. Delivery to clerk. The examination must be by question and answer, and if the testimony is to be taken in another state or territory, it must be taken upon a commission to be issued by the judge allowing the examination, under the seal of the court of which he is judge, and upon interrogatories to be settled in the same manner as in cases of depositions taken under commission in pending actions, unless the parties expectant, if known, otherwise agree. If such parties are unknown, notice of the settlement of the interrogatories shall be published in some newspaper for such time as the judge may designate. The deposition when completed, must be carefully read to, and subscribed by, the witness, then certified by the officer or person taking the same, and shall then be sealed up and delivered or transmitted to the clerk of the court designated in the order of the judge allowing the examination, who shall file the same when received. The judge allowing the examination shall file with the clerk the order for examination, the petition on which the same was granted, with proof of service of the order and notice. [C. L. § 3969.

Cal. C. Civ. P. ? 2086.

3470. Petition, etc., prima facie evidence. The petition and order and papers filed by the judge, as provided in the last section, or a certified copy thereof are prima facie evidence of the facts stated therein to show compliance with the provisions of this chapter. [C. L. § 3970.

Cal. C. Civ. P. 2 2087.

3471. When deposition may be used. Objections to interrogatories. If a trial be had between the parties named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the facts which such depositions prove, or tend to prove, upon proof of the death or insanity of the witnesses, or that they cannot be found, or are unable, by reason of age or other infirmity, to give their testimony, the depositions or copies thereof may be used by either party subject to all legal objections; but, if the parties attend at the examination, no objection to the form of an interrogatory can be made at the trial, unless the same was stated at the examination. [C. L. § 3971.

Cal. C. Civ. P. 2088.

3472. Id. Has same effect as oral testimony. The deposition so taken and read in evidence has the same effect as the oral testimony of the witness, and no other, and every objection to the witness, or to the relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if he were examined orally at the trial. [C. L. § 3972.

Cal. C. Civ. P. 2 2089.

ADMISSION OR INSPECTION OF WRITINGS.

3473. Refusal of adverse party to admit genuineness of writing. Costs. Either party may exhibit to the other or to his attorney at any time before the trial any paper, material to the action, and request an admission in writing of its genuineness. If the adverse party or his attorney fails to give the admission within five days after the request and if the party exhibiting the paper is afterward put to costs in order to prove its genuineness and the same is finally proved or admitted on the trial, such costs must be paid by the party refusing the admission, unless it appears to the satisfaction of the court that there were good reasons for the refusal.

N. Dak. (1895) 5643; Wis. S. & B. An. C. (1889) ? 4184.

3474. Court may order party to permit writing to be copied. Refusal. Any court in which an action is pending or a judge thereof, may, upon notice, order either party to give to the other within a specified time, a copy, or permission to take a copy, of entries of accounts in any book, or of any document or paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defense therein. If compliance with the order be refused, the court may exclude the entries of accounts of the book, or the document, or paper from being given in evidence, or if wanted as evidence by the party applying, may direct the jury to presume them to be such as he alleges them to be; and the court may also punish the party refusing for a contempt. This section is not to be construed to prevent a party from compelling another to produce books, papers, or documents when he is examined as a wit[C. L. § 3669*.

ness.

Cal. C. Civ. P. ? 1000*.

Demand for inspection of writing, 22985. De

mand for items of an account, 2 2988. Notice to adverse party to produce writing, ? 3401.

CHAPTER 58.

GENERAL PROVISIONS.

3475. When testimony officially reported used on subsequent trial. Whenever in any court of record the testimony of any witness in any case shall be stenographically reported by an official court stenographer and thereafter said witness shall die, or be beyond the jurisdiction of the court in which the cause is pending, either party to the record may read in evidence the testimony of said witness when duly certified by the stenographer to be correct, in any subsequent trial of, or proceeding had, in the same cause, subject only to the same objection that might be made if said witness were upon the stand and testifying in open court. ['92, p. 61.

3476. When clerk to take down testimony. On the trial of an action in a court of record, if there is no court stenographer in attendance, the court may require the clerk to take down the testimony in writing. $ 3708.

Cal. C. Civ. P. ? 1051*.

[C. L.

3477. Exclusion of witnesses during trial. If either party requires it, the judge may exclude from the court room any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of other witnesses. [C. L. § 3957.

Cal. C. Civ. P. 2043.

Exclusion of witnesses, 696.

Granting order hereunder is discretionary.

Allowing witness who has inadvertently disobeyed it to testify is not error. People v. O'Loughlin, 3 U. 133; 1 P. 653.