§ 1811. A deposition is a written declaration under oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine.

§ 1812. An oral examination, is an examination in 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 lips of the witness.

§ 1813. In all affidavits and depositions, the witness must be made to speak in the first person. Depositions must be taken in the form of question and answer, and the words of the witness must be written down, unless the parties agree to a different mode.

§ 1814. An affidavit or deposition taken in another state of the United States, 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: or

2. It must be certified, by a judge of a court having a seal, to have been taken and subscribed before him, at a time and place specified, and the genuiness of the signature of the judge, the existence of the court, and the fact that such judge is a member thereof, must be certified by the clerk of the court, under the seal thereof.

1816. When deponent to be produced for examination.
1817. Evidence of publication, what.

§ 1815. An affidavit may be used, to verify a pleading or a paper in a special proceeding, to prove the service of a summons notice or other paper in an action or special 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 permitted by some other provision of this code, except as provided in the next section.

§ 1816. Whenever a provisional remedy, had been granted upon affidavit, the party against whom it was granted, may serve upon the party by whom it was obtained, a notice requiring the person making the affidavit to be produced for cross-examination. Thereupon the party making the motion, shall lose the benefit of the affidavit, and of all proceedings founded thereon, unless within eight days, or such other time as the court or a judge thereof may direct, upon a previous notice to his adversary of at least three days, he produce the deponent for examination, before an officer authorized to administer oaths. Upon such production, the deponent may be examined by either party.

§ 1817. Evidence of the publication of a document or notice required by law, or by an order of a court or judge, to be published in a newspaper, may be given

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.

§ 1818. If such affidavit be made in an action or special proceeding pending in a court, it may be filed with the court, or a 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 a copy thereof, certified by the court or clerk having it in custody, is primary evidence of the facts stated therein.

ARTICLE III.

DEPOSITIONS.

SECTION 1819. Deposition, when used.

1820. Testimony of a witness out of state, when taken.

1821. In the state, when taken.

§1819. In all cases, other than those mentioned in section 1815, where a written declaration under oath is used, it must be a deposition as prescribed by this code.

§ 1820. 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.

§1821. The testimony of a witness in this 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, after a question of fact has arisen therein, in the following cases:

1. When the witness is a party to the action or special proceeding:

2. When the witness resides more than one hundred miles from the place where his testimony is to be used:

3. When the witness is about to leave the state, and will probably continue absent when the testimony is required:

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.

ARTICLE IV.

MANNER OF TAKING DEPOSITIONS OUT OF THE STATE.

SECTION 1822. Testimony of witness out of state, how taken.

1823. Commission, how issued.

1824.

Contents of commission.

1825. Trial, when postponed therefor.

1826. Deposition out of state, taken before commissioner.
1827. Either party may attend.

1828. Deposition, by whom used.

§ 1822. 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.

§ 1823. The commission may be issued by the clerk under the seal of the court, or a surrogate, or by a jus

tice in their courts, on the application of either party, upon five days' previous notice to the other. It must be issued to a person agreed upon by the parties, or if they do not agree, to a judge or justice of the peace, selected by the officer issuing it.

Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled by the clerk or justice in a summary manner, if the parties disagree, may be annex the parties agree to that mode, the examination may be without written interrogatories.

the commission, or when

§ 1824. The commission must authorise 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.

§ 1825. A trial or other proceeding must 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.

§ 1826. The deposition of a witness out of this state, and in any other of the United States, may also be taken before a commissioner, appointed by the governor [CIVIL CODE.]

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