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1. Diligence must be used in applying for a commission. Pierson v. Holbrook, 2 Cal. 598.
2. It is admissible, notwithstanding the witness may have returned to the State since his examination, if he is not within the State at the time of the trial. Markoe *. Aldrich, 1 A ott, 55.
3. On the execution of a commission, the parties have a right to appear by counsel. Cross interrogatories cannot be withdrawn unless by mutual consent. A witness cannot shield himself from answering a cross interrogatory by a reference to his previous answer to a direct one. Union Bank v. Torrey, 2 Abbott, 269; 5 Duer, 626.
§ 433. Such deposition shall be taken upon commission issued under seal upon notice; to whom to issue.
The deposition of a witness out of this State shall be taken upon commission issued from the Court, under the seal of the Court, upon an order of the Judge, or Court, or County Judge, on the application of either party, upon five days' previous notice to the other. It shall be issued to a person agreed upon between the parties, or if they do not agree, to any Judge or Justice of the Peace selected by the officer granting the commission, or to a commissioner appointed by the Governor of this State to take affidavits and depositions in other States. *
STATUTES OF 1858, 22. The first section of an Act entitled “An Act empowering the Governor to appoint Commisioners of Deeds, and detining the duties of such officers," passed March 2011, 1850, is bereby amended so as to read as 10llows: “The Governor may, when in his judgment it may be necersary, appoint in each of the United States, and in euch of the territories and districts of the United States, and in each foreign State, territory, and colony, one or more commissioners, to continue in office four yeais, unless removed by the Governor. Every such commixtioner shall have power to administer oaths, and to take depositions and a ffidarits to be used in this State; and also to take the ackuowledgment or proof of any deed or other instrument to be recorded in this State."
STATUTES OF 1861, 553. CHAPTER CCCCXCIV.-Act to authorize the taking of Depositions in Foreign Countries. Sec. 1. The testimony of a witness in a foreign country may be taken by deposition in any civil action pending in any of the District Courts of this Staie, at any time alter the service of the summons, or the appearance of the defendant; and in a special proceeding, at any time after a question of fact has arisen therein,
SEC. 2. The deposition of a witness in a foreign country shall be taken upon commission issued from a District Court, under the scal thereof, upon an order of such Court or the Judge thercot, on the application of either party, upon tive days' previous notice to the other. It shall be issued to a person or perrolis agreed upon between the parties, or if they do not agree, to any person or persons nominated by the Court or Judge granting the commission.
SEC. 3. Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled, if the parties disagree as to their form, by the Court or Judge, granting the order for the commission at a day tixed in the order, may be annexed to the cominission; or when the parties agree to that mode, the examination may be without written interrogatories.
SEC. 4. The commission shall authorize the Commissioner to administer an oath to the witness and to take l.is deposition in anewer to the interrogatories; or when the examina. tion is to be without interrogatories, in respect to the question in dispute, and to certify the deposition to the Court in a sealed or clored envelop, directed to the Cicik, or other person designated or agreed upon, and forward to him by mail, or other usual channel of convey.
Sec. 5. When a deposition has been once taken in accordance with the provisions of this act, it may be subject to legal objections, be read in evidence in any stage of the same action or proceeding, by either party, and shall then be deemed the evidence of the party reading it. SEC. 6. This act shall take effect from and after its passage.
1. The Court have no power to order the original instrument belonging to the plaintiff, and on which his action is brought, to be annexed to a commission to take testimony in another State, issued at the instance of the defendants, although they provide for first taking a photograph of the instrument at the defendants' expense. Butler v. Lee, 19 How. Pr. 383.
§ 434. Proper interrogatories may be prepared, or may be waived, by the parties.
Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled, if the parties disagree as to their form, by the Judge or officer granting the order for the commission, at a day fixed in the order, may be annexed to the commission; or when the parties agree to that mode, the examination may be without written interrogatories.
§ 435. Authority and duties of commissioner.
The commission shall authorize the commissioner to administer an oath to the witness, and to take his deposition in answer to the interrogatories; or when the examination is to be without interrogatories, in respect to the question in dispute ; and to certify the deposition to the Court, in a sealed envelop directed to the Clerk, or other person designated or agreed upon, and forwarded to him by mail or other usual channel of conveyance.
§ 436. Trial shall not be postponed for return of commission, except upon showing of materiality of evidence and due diligence.
A trial or other proceeding shall 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.
J. P. 1. Where a party applied for a continuance to enable him to take the deposition of an absent witness, and the proof which was designed to be obtained would constitute no defense to the plaintitt's claim; the application was properly rejected. Hawley v. Stirling, 2 Cal. 470.
2. The answer of defendant was filed May 10th, 1852, and the application for a continuance to take testimony in New York was filed June 14th, 1852, during which interval no attempt was made to sue out a commission for the purpose : Held, that this is not sufficient diligence to entitle the party to bis application. Person v. Hollrook, 2 Cal. 598. See ý 432.
SS +37, 438] PROCEEDINGS TO PERPETUATE TESTIMONY.
CHAPTER VII.— Of proceedings to perpetuate testimony.
Sec. 437. Testimony may be perpetuated. 438. The applicant shall present verified petition to a
Judge. Granting and service of order. 439. Upon due service of notice, the depositions of the witnesses named
be taken. 440. Manner of taking depositions and filing thereof. 441. Affidavits, etc., filed with depositions shall be prima
facie proof of the facts therein stated. 412. Manner of using such depositions, if trial be had.
$ 137. Testimony may be perpetuated.
(1859.] The testimony of a witness or witnesses may be taken and perpetuated as provided in this chapter.
$ 438. The applicant shall present verified petition. Granting and service of order.
[1859.] The applicant shall present to a District or County Judge a petition verified by the oath of the applicant, stating :
1st. That the applicant expects to be a party to an action in a Court in this State, and in such case, the name or names of the person or persons whom he expects will be adverse parties; or,
2d. That the proof of some fact or facts is necessary to perfect the title to property in which he is interested, or to establish marriage descent, heirship, or any other matter which 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,
3d. The name or names of the witness or witnesses to be examined at his or their place of residence, and a general outline of the facts expected to be proved. The Judge to whom such petition is presented shall make an order allowing the examination and prescribing the notice to be given, which notice, if parties are known and reside in this State, shall be personally served on them; and if unknown, such notice shall be served on the Clerk of the county where the property to be affected by such evidence is situated, and a notice thereof published in some newspaper to be designated by the Judge making the order. J.P.
$ 139. Upon due service of notice, the depositions of the witnesses named may be taken.
(1859.] Upon proof of service of the notice as provided in the last section, it shall be the duty of the Judge before whom the depositions are taken, to proceed to take the depositions of the witnesses named in said petition, upon the facts therein set forth; and the taking of the same may be continued from time to time in the diseretion of the Judge.
$ 440. Manner of taking depositions and filing thereof.
[1859.] The examination shall be by question and answer, unless the parties otherwise agree. The deposition, when taker, shall be carefully read to, and subscribed by, the witness, then certified by the Judge, and immediately thereafter filed in the office of the Clerk of the District Court of the county where the same was taken, together with the order for the examination, the petition on which the same was granted, and the proof of service of notice.
§ 441. Affidavits, etc., filed with depositions shall be prima facie proof of the facts therein stated.
[1859.] The affidavits or other proof filed with the depositions, or certified copies thereof, shall be prima facie evidence of the facts therein stated.
§ 442. Manner of using such depositions, if trial be had.
(1859.] 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 witness or witnesses, or if his or their inability to attend the trial by reason of age, sickness, or settled infirmity, the deposition or depositions, or certified 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 shall be made at the trial, unless the same was stated at the examination.
CHAPTER VIII.*—Administration of oaths and affirmations. Sec. 443. Authorizing certain persons to administer oaths. 444. A person may be sworn according to the peculiar cere
monies of his religion. 445. A witness may, instead of taking an oath, make
443. Authorizing certain persons to administer oaths.
Every Court of this State, every Judge or Clerk of any Court, every Justice of the Peace, and every Notary Public, and every officer authorized to take testimony, or to decide upon evidence in any proceeding, shall have power to administer oaths or affirmations.
414. A person may be sworn according to the peculiar ceremonies of his religion.
When a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such.
445. A witness may, instead of taking an oath, make an affirmation.
Any witness who desires it may, at his option, instead of taking
STATUTES OF 1852, 106. An Act concerning the administration of oaths. Passed May 1st, 1852. 1. That all officers of this State, authorized by law to administer oaths or affirmations, may certify the same under their hands, without fixing to such certificates their scals of office.
2. That all oaths or affirmations heretofore administered by any officer of this state, and by him certified under his hand, without the seal of office, shall be as effectual for all purposes as if such seal had been affixed to such certificate.