CHAPTER X.

DEPOSITIONS.

SECTION 75. DEFINITION.

A deposition is the testimony of a witness taken down in writing, or in stenographic notes and afterwards reduced to typewriting, under oath or affirmation, before a commissioner, judge, master in chancery, notary public, clerk of a court, or other person duly authorized by law, in answer to interrogatories either oral or written.

Statutory provisions in the various states prescribe the particular circumstances and conditions under which depositions may be taken, and the mode of procedure. These provisions must be strictly complied with; otherwise, the deposition will be suppressed.

SECTION 76. USUAL GROUNDS FOR TAKING.

The deposition of a material witness may be taken: (1) when he is a non-resident of the State and beyond the jurisdiction of the court; (2) when he is about to depart from the State to remain permanently, or will not return in time to testify at the trial; (3) when a witness is sick and about to die, or too ill to appear in court; (4) when a witness is growing old and it is desired to perpetuate his testimony for probable future litigation.

Depositions are not allowed to be taken and cannot be introduced in evidence in criminal cases.

SECTION 77. APPLICATION FOR COMMISSION.

Application to take a deposition is usually made by motion; statutory provisions, or the nature of the proceeding, may require it to be done by petition or bill in chancery.

By statute, in most jurisdictions, after due notice to all parties litigant, upon proper motion or petition, there issues out of the court to which application is made, as a matter of right, under its seal, a commission to take testimony, or dedimus potestatum, as it is called. This commission is usually directed to a certain specified person, as commissioner, or to any judge, master in chancery, notary public, or justice of the peace, of the county in which the deposition is to be taken, commanding him to take the deposition of X, a material witness in the said cause, upon interrogatories, oral or written, as the case may be, to be propounded by either party, at a specified time and place.

The commissioner must not be of counsel for either party, nor in any way interested in the result of the action, nor in any manner in favor of or prejudiced against either litigant.

In the absence of statute or rule of court requiring it, the notice need not name the commissioner before whom the depositions are to be taken, but must state the names of witnesses, and time and place with certainty.

SECTION 78. FORM OF NOTICE TO TAKE ORAL DEPOSI

day of

.o'clock in the

To Henry E. Small, said Defendant:

TAKE NOTICE, That on the..

.A. D. 19.. at....

forenoon, or as soon thereafter as counsel can be heard, the undersigned will sue out of the office of the clerk of said Court a dedimus potestatum or commission, under the seal of said Court, directed to...

of...

and State of....

or to any Judge, Master in Chancery, Notary Public, or Justice of the Peace of the County last named, to take the deposition of... ..upon interrogatories to be propounded to said witness orally, to be read in evidence on the part of the said plaintiff on the trial of the above entitled cause.

FURTHER, TAKE NOTICE, That said deposition will be taken at the office of..

No.....

...Street, in City of..

..afore

said; and the examination of said witness under said commission will be begun on.. day of....

the...

A. D. 19...., at ......o'clock

.. M., and will continue from day to day until completed, at which time and place you may appear and cross-examine, if you shall see fit so to do.

Dated,....

19.....

Attorney for Plaintiff.

SECTION 79. THE DEDIMUS POTESTATUM.

The commission must be duly entitled of the proper court and cause. Some statutes require the

name of the commissioner to be inserted before the issuance of the dedimus potestatum, while under other statutes it is held sufficient to direct the commission to a particular person solely by the title to the office which he holds, while some authorities go so far as to hold it sufficient to direct it to "any officer legally authorized to take depositions," or it may be issued blank and the name of the commissioner inserted before the return.

It is much the better practice to specify the name of the commissioner and his residence.

SECTION 80. FORM OF DEPOSITION.

THE DEPOSITION of...

County of..

of....

of the

..and State

a witness

of lawful age, produced, sworn and examined, upon

duly appointed by a DEDIMUS POTESTATUM or COMMISSION issued out of the Clerk's office of the...

Court of....

in the State of.

in the name of..

said....

. County,

bearing Teste

Esq., Clerk of

.Court, with the seal

of the said Court affixed thereto, and to me directed as such Commissioner, for the examination of the said... a witness in a

certain suit and matter in controversy now pending and undetermined in said..

.Court,