The payment to a witness of his fees and mileage is not sufficient to entitle the party requiring the attendance to recover the penalty for nonattendance here provided for, but it must be shown that the witness

was material, and that damage other than the loss of such fees and mileage resulted from his nonattendance: Lombard v. Smith, 37 Or. 23, 60 Pac. 388, 707.

§ 811. When Warrant May Issue to Bring Witness.

In case of the failure of a witness to attend, the court or officer before whom he is required to attend, upon proof of the due service of the subpoena and the failure of the witness, may issue a warrant to the sheriff of the county, requiring him to arrest the witness and bring him before the court or officer where his attendance was required. [L. 1862; D. Cd. § 789; H. C. § 799.]

Where a witness fails to attend, the proper proceeding is to apply to the court to have him arrested and brought in, as here provided, and upon a failure to do so

the court may refuse to grant a continuance because of such absent witness: State v. Birchard, 35 Or. 494, 59 Pac. 468.

§ 812. Warrant of Arrest or Commitment Against a Witness.

Every warrant of commitment issued by a court or officer pursuant to this chapter shall specify therein the cause of the commitment; and if it be for refusing to answer a question, such question shall be stated in the warrant. A warrant to arrest or commit a witness shall be directed to the sheriff of the county in which the witness is attending or is required to attend. [L. 1862; D. Cd. § 790; H. C. § 800.]

§ 813. If Witness be a Prisoner, how Produced or Examined.

If the witness be a prisoner, confined in a prison within this state, an order for his examination in the prison upon deposition, or for his temporary removal and production, before a court or officer, for the purpose of being orally examined, may be made as follows:

1. By the court or judge thereof in which the action, suit, or proceeding is pending, unless it be a court of a justice of the peace;

2. By any judge of a court of record, when the action, suit, or proceeding is pending in a justice's court, or when the witness' deposition, affidavit, or oral examination is required before a judge or other person out of court; 3. Such order shall only be made upon the affidavit of the party desiring the order, or some one on his behalf, showing the nature of the action, suit, or proceeding, the testimony expected from the witness, and its materiality;

4. If the witness be imprisoned in the county where the action, suit, or proceeding is pending, and for a cause other than a sentence for felony, his production may be required; in all other cases, his examination shall be taken by deposition. [L. 1862; D. Cd. § 791; H. C. 801.]

CHAPTER III.

OF THE MODE OF TAKING THE TESTIMONY OF WITNESSES.

§ 814. Testimony Taken in Three Modes.

The testimony of a witness is taken in three modes:

1. By affidavit;

2. By deposition;

3. By oral examination. [L. 1862; D. Cd. § 792; H. C. § 802.]

§ 815. Affidavit, Definition Of.

An affidavit is a written declaration under oath, made without notice to the adverse party. [L. 1862; D. Cd. § 793; H. C. § 803.]

An affidavit to be valid must be sworn to before some officer in person, and a pretended affidavit with the certificate of an officer attached, who did not administer the

§ 816. Deposition, Definition Of.

oath in person, but simply affixed his certificate, is not an affidavit: Ex parte Finn, 32 Or. 525, 52 Pac. 756, 67 Am. St. Rep. 550.

A deposition is a written declaration under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and crossexamine. [L. 1862; D. Cd. § 794; H. C. § 804.]

§ 817. Oral Examination, Definition Of.

An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact, or act upon it, the testimony being heard by the jury from the mouth of the witness. [L. 1862; D. Cd. § 795; H. C. $ 805.]

Oral examination must be under oath or affirmation.

§ 818. Affidavit or Deposition, how Taken.

See § 694, and note.

In all affidavits and depositions, the witness must be made to speak in the first person. Depositions shall be taken in the form of question and answer, unless the parties agree to a different mode. [L. 1862; D. Cd. § 796; H. C. § 806.]

§ 819. How Authenticated, if Taken in Other State or Country.

An affidavit or deposition taken in another state of the United States or a territory thereof, the District of Columbia, or in a foreign country, otherwise than upon commission, must be authenticated as follows, before it can be used in this state:

1. It must be certified by a commissioner, appointed by the governor of this state to take affidavits and depositions in such other state, territory, district, or country; or,

2. It must be certified, by a judge of a court having a clerk and a seal, to have been taken and subscribed before him, at a time and place therein

specified, and the existence of the court, the fact that such judge is a member thereof, and the genuineness of his signature shall be certified by the clerk of the court, under the seal thereof. [L. 1862; D. Cd. § 797; H. C. § 807.]

CHAPTER IV.

OF AFFIDAVITS.

§ 820. Affidavit, When May be Used.

An affidavit may be used to prove the service of a summons, notice, or other paper in an action, suit, or proceeding to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, or upon a motion, and in any other case expressly provided by this code or other statute of the state, except as provided in the next section. [L. 1862; D. Cd. § 798; H. C. § 808.]

§ 821. When Deponent to be Used for Cross-examination.

Whenever a provisional remedy has been allowed upon affidavit, the party against whom it is allowed may serve upon the party by whom it was obtained a notice, requiring the person making the affidavit to be produced before some officer authorized to administer oaths, therein named, for crossexamination. Thereupon, the party to whom the remedy was allowed shall lose the benefit of the affidavit and all proceedings founded thereon, unless within eight days, or such other time as the court or judge thereof may direct, upon a previous notice to his adversary of at least three days, he produce the deponent for examination before the officer mentioned in the notice, or some other of like authority, provided for in the order of the court or judge. Upon such production, the deponent may be examined by either party; but a party shall not be obliged to produce a witness for examination as in this section provided, except within the county where the provisional remedy was allowed. [L. 1862; D. Cd. § 799 ; H. C. § 809.]

§ 822. Proof of Publication May be Made by Affidavit.

Proof of the publication of a document or notice required by law, or by an order of court or a judge, to be published in a newspaper, may be made by the affidavit of the printer of the newspaper, or his foreman or principal clerk, annexed to a copy of the document or notice, specifying the times when and the paper in which the publication was made; but such affidavit must be made within six months after the last day of publication. [L. 1862 ; D. Cd. § 800 ; H. C. § 810.]

§ 823. Affidavit of Publication, when Filed, and Effect Thereof or of a Copy. If such affidavit be made in an action, suit, or proceeding pending in a court, it may be filed with the clerk thereof; if not so made, it may be filed

with the clerk of the county where the newspaper is printed. In either case, the original affidavit, or if the same be filed with the clerk, a copy thereof, duly certified, is primary evidence of the facts stated therein. [L. 1862; D. Cd. § 801; H. C. § 811.

CHAPTER V.

OF DEPOSITIONS.

§ 824. Deposition, when Required.

In all cases other than those mentioned in section 820, where a written declaration under oath is used, it must be a deposition as prescribed by this code. [L. 1862; D. Cd. § 802; H. C. § 812.]

§ 825. Deposition of Witness Out of State.

The testimony of a witness out of the state may be taken by deposition in an action at law, at any time after 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. [L. 1862; D. Cd. § 803; H. C. § 813.]

§ 826. Deposition of Witness in State.

The testimony of a witness in this state may be taken by deposition, in an action at law, 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 to the action or proceeding by the adverse party;

2. When the witness' residence is such that he is not obliged to attend in obedience to a subpoena, as provided in section 807;

3. When the witness is about to leave the county and go more than twenty miles beyond the place of trial;

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. [L. 1862; D. Cd. § 804; L. 1866, p. 15, § 6; L. 1870, p. 35, § 10; L. 1872, p. 118, § 3; L. 1874, p. 97, § 3; H. C. § 814.]

This statute gives the right to either party to take the deposition of the adverse party: Roberts v. Parrish, 17 Or. 583, 22 Pac. 136; and when such adverse party refuses to appear in obedience to the summons to have his deposition taken by the

adverse party, his pleading may be stricken out: Wheeler v. Burckhardt, 34 Or. 506, 56 Pac. 644. So, a person who is a party to an action may have his deposition taken in his own behalf: Roberts v. Parrish, supra.

§ 827. Reference in Equity to Take Testimony and Report.

Whenever a suit in equity is at issue upon a question of fact, the court may refer the same to a referee, except as provided in section 406, to take the

VOL. I.-26.

testimony in the case, and report the same to the court within such time as the court or judge may order; and the court or judge thereof shall have power to revoke a reference or change the referee as in its discretion it shall see fit. Special reference may be made to a special referee for the purpose of taking the testimony of witnesses residing more than twenty miles from the place of holding the court or residing out of the state, and the testimony so taken shall be returned to the court. When an equity cause has gone to a final decree, the judge of the court rendering the decree shall, within ten days after the entry of the decree by a proper certificate, identify all the evidence in the cause, whether consisting of the testimony of the witness documentary evidence or exhibits. The referee shall have the power to require the attendance of witnesses and may issue subpoenas therefor. The testimony of the witnesses taken before the referee shall be reduced to writing: Provided, that if the evidence is taken by a stenographer, he shall extend the same, and certify to its being a true and correct transcript thereof. All documentary evidence offered shall be preserved and incorporated in the report of the evidence by the referee. Where evidence is offered by any party to the suit, and the same is excluded by the ruling of the referee, the party so offering the same shall be entitled to have the same taken down in like manner as the testimony received is taken. The party offering such testimony shall be required to pay for taking such testimony so excluded, unless the court may hold the same was competent. [L. 1862; D. Cd. § 805; L. 1866, p. 15, §7; L. 1870, p. 35, § 11; L. 1872, p. 119, § 4; D. & L. C. § 805; L. 1874, p. 97, § 4; L. 1885, p. 70, § 2; H. C. § 815; L. 1893, p. 27, § 2.]

See note to § 406.

The amendment of 1893 of this section deprived the trial courts of the power they possessed under the former law to refer an issue of fact in a suit in equity to a referee, with direction to report the conclusions of fact and law as found by him. The manifest object of this amendment is to compel a trial by the court of such issues of fact, to the end that it may observe and note the appearance of the witnesses and their manner of testifying, thereby materially aiding the court in weighing the evidence, and reaching a correct conclusion therefrom; and when it becomes necessary to refer an issue of fact to a referee, it is incumbent upon the court to reach its conclusions of fact and law from the evidence reported, uninfluenced by any opinion of the referee thereon: Craig_v. California Vineyard Co. 30 Or. 51, 46 Pac. 421.

Testimony will not be struck out on appeal because it was not certified to by the

presiding judge within ten days after the entry of the decree, as here required, where the testimony and exhibits are before the appellate court, and the delay has not deprived the respondent of any rights on the appeal: Osgood v. Osgood, 35 Or. 6, 56 Pac. 1017.

The only cases in which the trial judge need certify the testimony are those tried before a referee. Where the trial was had before the judge of the court, the certificate of the stenographer is all that is required: Tallmadge v. Hooper, 37 Or. 509. 61 Pac. 349.

This section does not require all documentary evidence to be offered before the referee. In a suit to determine the title to real property, therefore, a plaintiff was entitled to put the documentary evidence of his title in evidence on the final hearing. though they had not been offered before the referee: Crown Point Min. Co. v. Crismon, 39 Or. 364, 65 Pac. 87.

CHAPTER VI.

OF THE MANNER OF TAKING DEPOSITIONS OUT OF THE STATE.

§ 828. Deposition of Witness Out of State, how Taken.

The deposition of a witness out of the state may be taken upon commission issued from the court, or without commission before a commissioner appointed by the governor of this state to take depositions in other states or countries. [L. 1862; D. Cd. § 806; H. C. § 816.]