CHAPTER VI.

OF DEPOSITIONS TAKEN OUT OF THIS STATE.

[As to depositions in foreign countries, see post, 695.] When deposition out of State may be taken.

*

§ 432. The testimony of a witness out of the 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, at any time after a question of fact has arisen therein.

Commission, how and to whom issued.

433* 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 by 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.

Interrogatories. Settlement of interrogatories.

§ 434.* 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.

Applicable to justices' courts, see 620.

Authority under commission.

$435.* 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 envelope directed to the clerk or other person designated or agreed upon, and forwarded to him by mail or other usual channel of conveyance.

No continuance of action, except, etc.

§ 436*. 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. [2 Cal. 598.]

CHAPTER VII.

OF PROCEEDINGS TO PERPETUATE TESTIMONY.

Perpetuating testimony.

$ 437. The testimony of a witness, or witnesses, may be taken and perpetuated, as provided in this chapter.(a) [Amendment, approved April 12, 1859, 218.

Petition under oath.

§ 438. The applicant shall present to a district or county judge, a petition, verified by the oath of the applicant, stating:

* Applicable to justices' courts, see 601.

(a) The original section did not contain the words "or witnesses."

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."