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fest error, and should be construed to mean of depositions on the information or on the "testimony" or "evidence.” Kerry v. State, examination. Mattingly v. Nichols, 65 Pac. 17 Tex. App. 178, 182, 50 Am. Dec. 122. 748, 133 Cal. 332.

Primarily, a "deposition" is simply writ Tbe testimony of a witness taken by a ten testimony. It is testimony that is de Judge in the form of a deposition, and reposited or laid down in writing. A legal duced to writing by a stenographer, but not deposition, according to Bouvier, is the tes- read over to or corrected or signed by the timony of a witness reduced to writing, in witness or certified by the judge, does not due form of law, by virtue of the commis- constitute a "deposition" within the requiresion or other authority of a competent tribu- ments of the Code. Thomas V. Black, 23 nal, or, according to the provision of some Pac. 1037, 1038, 84 Cal. 221. statute law, to be used on the trial of some question of fact in a court of justice. In

An affidavit that on a certain page of a Troy Iron & Nail Factory V. Corning (u. bill of exceptions a space was left for depS.) 24 Fed. Cas. 236, it was said by Nelson, ositions, and "such depositions” were placed J., that it is testimony taken out of court inside of said bill of exceptions at said under an authority which will entitle it to point, but not otherwise fastened, will be be read as evidence in court, and has no construed to mean the original depositions, relation to oral testimony taken in court and not copies. Pennsylvania Co. v. Sears, or before a master. Indianapolis Water Co. 36 N. E. 353, 354, 136 Ind. 460. v. American Strawboard Co. (U. S.) 65 Fed.

"Deposition," as used in Code Cr. Proc. 534, 535.

1879, art. 774, providing that the deposition The term “deposition,” although some of a witness taken before an examining times used as synonymous with "affidavit court or a jury of inquest, and reduced to or "oath," in its strict and appropriate sense writing and certified, may be read in eviis limited to the written testimony of a wit- dence, authorizes the use only of depositions ness given in the course of a judicial pro- taken in such cases, and does not authorize ceeding, either at law or in equity. State the reading in evidence by the state of tesv. Dayton, 23 N. J. Law (3 Zab.) 54, 53 Am. timony given by a witness before such exDec. 270. In jurisprudence, says Abbot, the amining court. Cline v. State, 36 Tex. Cr. principal use of the term is to signify the R. 320, 369, 36 S. W. 1099, 61 Am. St. Rep. testimony of a witness when given in answer

850. to interrogatories propounded by a person On the taxation of costs in an equity case authorized for the purpose, and officially tak- in the federal court, the fee of $2.50 on each en down in writing. The Sallie P. Linder- deposition taken and admitted in evidence man (U. S.) 22 Fed. 557, 558.

on the hearing before the court is taxable At a preliminary examination for a

under Rev. St. $ 824, providing a fee, for magistrate, the justice appointed the plain

each deposition taken and admitted in a tiff to report in shorthand the proceedings at cause, in favor of the party recovering costs, the preliminary investigation, and, in an

and it is immaterial before what officer the action to recover for his services and for

deposition was taken, whether examiner, transcribing the evidence, it was contended master, or otherwise. Furguson v. Dent (U. that the county was liable, in that the stat s.) 46 Fed. 88, 90, 91. ute made it the duty of the magistrate to

Under Rev. St. $ 824, allowing fees for indorse in writing his order of discharge depositions” taken, the testimony of each upon the “depositions” taken, etc., and hence witness is a deposition, especially where such depositions were necessary, and a part the testimony of each witness is taken sepof the legitimate costs of the preliminary ex- arately. Broyles V. Buck (U. S.) 37 Fed. amination; but the court held that the name 137, 138. "deposition" is used to designate the testimony taken by the magistrate when the A deposition is a written declaration uncomplaint is presented to him before the der oath, made upon notice to the adverse issuance of the warrant, as well as the tes- party. Bates' Ann. St. Ohio 1904, 8 5262; timony of witnesses taken upon the examina- Rev. St. Wyo. 1899, § 3704. tion of the accused after arrest, and that the order of discharge may properly be indorsed

A deposition is a written declaration unupon the former. Thus Pen. Code, š 811, der oath, made upon notice to the adverse provides that, when an information is laid party, for the purpose of enabling him to before a magistrate, he must examine the attend and cross-examine. Code Civ. Proc. informant and any witnesses, and take their Cal. 1903, $ 2004; Ann. Codes & St. Or. 1901, depositions in writing. Then section 812 pre

$ 816. scribes what the deposition as taken must A deposition is a written declaration unset forth. The term "deposition" is also giv- der oath, made on notice to the adverse en to the testimony taken upon the examina-party, for the purpose of enabling him to tion of the accused, and section 870 speaks attend and cross-examine, or upon written

interrogatories. Ann. St. Ind. T. 1899, $tered or published as true. People v. Robles, 2027; Gen. St. Kan. 1901, § 4790; Rev. 49 Pac. 1042, 117 Cal. 681. Codes N. D. 1899, $ 5667; Code Civ. Proc. S. D. 1903, $ 505; Rev. St. Okl. 1903, § 4529. ander oath, made without notice to the ad

An "affidavit” is a written declaration Affidavit.

verse party. Civ. Code Proc. $ 3321. A

"deposition" is a written declaration on oath, Deposition, on its proper technical made upon notice to the adverse party, for sense, is limited to the written testimony the purpose of enabling him to attend and of a witness in the course of a judicial pro- cross-examine. Both affidavit and deposiceeding either at law or in equity.” Bouv- tion are declarations under oath, and a disier. It is, however, sometimes used, both in tinction recognized by the court between common parlance and legislative enactments the two is simply for the purpose of preas synonymous with "affidavit" or "oath,” serving the right of cross-examination. So and is thus defined by Webster. State v. that in a probate proceeding, where there Dayton, 23 N. J. Law (3 Zab.) 49, 54, 53 Am. is no adverse party, an affidavit will be Dec. 270.

treated as a deposition. In re Liter's Estate, The word “deposition" may be used in 48 Pac. 753, 756, 19 Mont. 474. two senses. In its restricted and technical " 'Deposition' is a generic term, embrasense it is usually limited to the written cing all written evidence verified by oath, testimony of a witness given in the course and thus includes affidavits; but in legal lanof a judicial proceeding at law or in equity, guage a distinction is maintained in courts but it is also a generic expression, which of law and chancery between 'depositions' embraces all written evidence verified by and 'affidavits.' A 'deposition' is evidence oath, and thus includes affidavits; and, as given by a witness under interrogatives. used in the Political Code of Georgia, au- oral or written, and usually written down thorizing a commissioner of the state, resid- by an official person; while an 'affidavit is ing in another state, to administer oaths the mere voluntary act of the party making and to take certified acknowledgments of the oath, and may be, and generally is, takdepositions under commission or otherwise, en without the cognizance of the one against the word "deposition” will be held to in- whom it is used.” Stimpson v. Brooks (U. clude affidavit, this being rendered the more S.) 23 Fed. Cas. 100. proper construction owing to the fact that

An affidavit is a voluntary ex parte he is authorized by the language to certify acknowledgments of depositions not taken statement, formally reduced to writing, and under a commission by the use of the words sworn to or confirmed before some officer "or otherwise.” Baker v. Magrath, 32 S. E. authorized by law to take it. The distine370, 371, 106 Ga. 419.

tion between an "affidavit" and a "deposi

tion" is that the former is ex parte volunThe word "deposition" includes affida- tary, and the latter is made after notice, vits, and is so used in the provision that the and is compulsory. If the witness is submaking of a deposition or certificate is deem- pænaed, sworn, and required to answer, his ed to be complete, within the provision of evidence, reduced to writing, is his "depothe chapter relating to perjury, from the sition." Crenshaw v. Miller (U. S.) 111 Fed. time when it is delivered by the accused to 450, 452; Woods v. State, 33 N. E. 901, 903. any other person with intent that it be ut- 134 Ind. 35.

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