First. 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

Second. 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

Third. The name or names of the witness, or witnesses, to be examined, 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.(a) [Amendment, approved April 12, 1859, 218.

Taking of deposition.

$439. 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 ordered to be 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

(a) The original section was the same as the text, except that it did not provide for the cases mentioned in the second subdivision, nor for service upon parties unknown.

may be continued, from time to time, in the discretion of the judge.(a) [Amendment, approved April 12, 1859, 218.

Deposition how taken. Filing testimony.

§ 440. The examination shall be by question and answer, unless the parties otherwise agree. The deposition, when taken, 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(b) [Amendment, approved April 12, 1859, 218.

Affidavits, etc., prima facie evidence.

§ 441. The affidavits, or other proof filed with the depositions, or certified copies thereof, shall be prima facie evidence of the facts therein stated. (c) [Amendment, approved April 12, 1859, 218.

Use of testimony taken.

§ 442.* If a trial be had between the parties named in the petition as parties expectant, or their successors in inter

Applicable to justices' courts, see 620.

(a) The original section was to the effect that upon personal service of the order, copy of affidavit, and notice that the examination would be taken, before a district or county judge, the examination should proceed.

(b) The original section provided that the deposition, together with the order, affidavit, and affidavit of service should be filed in the clerk's office of the county.

(c) The original section had the word " 'prim ry instead of "prima facie."

est, 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 of 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. (a) [Amendment, approved April 12, 1859, 218.

CHAPTER VIII.

ADMINISTRATION OF OATHS AND AFFIRMATIONS.

Who may administer oath.

$ 443.* 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.

Religious ceremonies.

§ 444* 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.

* Applicable to justices' courts, see 620.

(a) The original section did not contain the clause as to trials between parties wherein it may be material to establish the facts which such depositions prove or tend to prove."

Affirmation instead of oath.

§ 445. Any witness who desires it may, at his option, instead of taking an oath, make his solemn affirmation or declaration, by assenting, when addressed, in the following form: "You do solemnly affirm, that the evidence you shall give in this issue, (or matter) pending between and

shall be the truth, the whole truth, and nothing but the truth." Assent to this affirmation shall be made by the answer, "I do." A false affirmation or declaration shall be deemed perjury, equally with a false oath.

CHAPTER IX.

INSPECTION OF DOCUMENTS, AND MISCELLANEOUS PROVISIONS AS TO RECORDS AND WRITINGS.

Order for inspection and copy. Non-compliance.

§ 446.* Any court in which an action is pending, or a judge thereof, or a county judge, may, upon notice, order either party to give to the other within a specified time an inspection and copy, or permission to take a copy of any book, 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 book, document, or paper, from being given in evidence; or if wanted as evidence by the party applying, may direct the jury to presume it to be such as he alleges it to be; and the court may also punish the party refusing for a contempt. This section shall not be construed to prevent a party from compelling another to

*Applicable to justices' courts, see 620.

produce books, papers, or documents, when he is examined as a witness.

Contents of writing. Secondary evidence.

§ 447.* There shall be no evidence of the contents of a writing, other than the writing itself, except in the following

cases:

First. When the original has been lost or destroyed; in which case proof of the loss or destruction shall first be made.

Second. When the original is in the possession of the party against whom the evidence is offered, and he fails to produce it after reasonable notice.

Third. When the original is a record or other document, in the custody of a public officer.

Fourth. When the original has been recorded, and a certified copy of the record is made evidence by statute.

Fifth. When the original consists of numerous accounts or other documents, which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.

[2 Cal. 25; 6 Cal. 413; 9 Cal, 430, 593.]

Alterations of writing.

§ 448.* The party producing a writing as genuine, which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, and such alteration is not noted on the writing, shall account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or other

* Applicable to justices' courts, see 620.