Forms Required in Taking Depositions.

Officers taking depositions under a commission should be very careful to execute the duty carefully, or otherwise the commission will be a nullity when returned into Court. As evidence in the form of depositions is an innovation on common-law procedure,

admitted on statutory enactments, Courts are very strict in seeing that the requirements of the statute have been duly observed. In late times, this kind of evidence is very frequently produced, and it is therefore very desirable, in a work of this character, to give abstracts of the statutory directions in the various States, with approved forms, for the guidance of notaries, and others who are empowered to take depositions. I shall therefore examine the provisions of each State, and give a brief and accurate synopsis of the statute under each, and the required forms. In each instance, the latest compilation or revision of the statutes will be referred to. Before executing a commission, it would be well to refer to the sixth chapter, where the law is given relating to the execution and return of the commission.

ALABAMA.

The testimony of witnesses resident without the State, or who are about to remove from the State, or where the witness is a female, or, from infirmity, or age, or sickness, is unable to attend Court, or resides more than a hundred miles from the place of trial, or where the witness is Governor of a State, or a State official, or of a profession or calling such as to prevent attendance at the place of trial, may be taken by interrogatories. It is the duty of the commissioner to reduce the answers of the witness to writing, or cause it to be done by the witness, or some impartial person, as near as may be in the language of the witness, having first sworn him to speak the truth, the whole truth, and nothing but the truth; and when completed, the deposition must be read over to the witness, and by him subscribed. After the signature, the commissioner appends a certificate of the manner, time, and place

ALABAMA-CONTINUED.

of taking the deposition, as in the form following, and signs it. The package may be sent by mail or private conveyance, sealed and directed to the clerk of the Court. Rev. Code, Secs. 2716–2730.

111.

JOHN DOE

V.

RICHARD ROE.

I,

Form of caption and certificate

one of the commissioners named in the annexed commission, caused to come before me at in the county of State of, CD, a witness examined by the plaintiff in the annexed stated cause, and having sworn him, or affirmed him, on the Holy Evangelists, the truth to speak, the whole truth and nothing but the truth, he deposes and says as follows:

1. To the first interrogatory, he saith:

[Here write the answer in the language of the witness.]

If there are cross or rebutting interrogatories, proceed in the same manner. And let the witness sign, after which the commissioner or commissioners then add the following:

I, —————, said commissioner, hereby certify that I caused to come before me at [stating full address] the above named witness, CD; that he was duly sworn and examined; that his evidence was taken down as near as may be in his own language, and was read over to him, and by him subscribed in my presence, and that the identity of the said witness is known to me [or has been made known to me by proof made by E F] as the same person named in the interrogatories and the commission annexed. As witness my hand and seal, this

day of

A. D. 18.

The title and names of parties are indorsed, and the packet sealed, and the commissioner should write his name across the seals.

ARIZONA.

In the Territory, a deposition in civil cases may be taken of a party to the action, of a witness residing more than fifty miles from the place of trial, of a witness about to leave the county who may be absent at time of trial, and of a witness too infirm to attend the trial. The deposition, when completed, shall be carefully read to the witness, and corrected by him in any particular, if desired; it shall then be subscribed by the witness, certified by the officer, inclosed in an envelope or wrapper, sealed, and directed to the clerk of the Court in which the action is pending. Comp. Laws, p. 449.

The deposition of a witness out of the Territory may be taken

ARIZONA-CONTINUED.

by a person upon whom the parties agree, or when they do not, it is directed to any judge or justice of the peace, selected by the officer granting the commission, or to a commissioner for the Territory. The commission shall authorize the commissioner to administer an oath to the witness, and to take his deposition in answer to the interrogatories, and to certify the deposition to the Court in a sealed envelope, directed to the clerk or other person agreed upon. Comp. Laws, p. 450.

The form given for California may be used.

ARKANSAS.

Depositions may be taken out of the State, before a commissioner appointed by the Governor thereof, a judge of a Court, a justice of the peace, mayor of a city, notary public, or any other person empowered by a commission directed to him. A certificate of the official character of the officer taking a deposition out of the State is required, attested under the seal of State. Gantt's Dig. p. 499. Neither party can be present, unless both are represented, or the opposite party has had seasonable notice: p. 501.

The officer before whom a deposition is taken shall decide, summarily, all objections to questions; but in matters of doubt shall permit the questions to be answered, noting the objection in the deposition. The statement must be written by the officer, or by the witness in his presence. The officer must certify the time and place of taking the deposition, that the witness was duly sworn before he gave his testimony, and that his testimony was written, and read to, and subscribed by him, in the presence of the officer. He must also state by whom it was written, and which of the parties, in person, or by agent or attorney, was present at the examination of the witness. The depositions, when completed, must be sealed up by the officer and directed to the clerk of the Court before whom the action is pending, with an indorsement thereon, showing them to be depositions, and the style of the case. They must then be either delivered or mailed to the clerk by the officer taking them, except that when taken out of the State they may be delivered to the party taking the same, his agent or attorney, to be by him delivered; such person so delivering them being required to take an oath that they have not been opened by him, or other person, to his knowledge. Gantt's Dig. Secs. 2578-2581.

112.

Form of caption and certificate.

The deposition of taken on the day of 18at the office of in the [giving full address] to be read in evidence in an action between John Doe, plaintiff, and Richard Roe, defendant, pending in the Court of kansas.

County, Ar

ARKANSAS-CONTINUED.

STATE OF Arkansas, }

County of

SS.

Certificate.

I,, a notary public in and for said county, do certify that the foregoing deposition of was taken before me, and was read to and subscribed by him in my presence, at the time and place mentioned in the caption, the said having been first sworn by me that the evidence he should give in the action should be the truth, the whole truth, and nothing but the truth; and his statements were reduced to writing by me in his presence, [or by him in my presence] the plaintiff alone being present at the examination for the defendant, or both, or neither, in person or by attorney, as the case may be].

Witness my hand and seal of office, at 18.

on this

day of

CALIFORNIA.

Commissions for taking the depositions of witnesses out of the State are issued from the Court in which the action is pending. They can be taken by a commissioner of the State, or by any person agreed upon by the parties. When the parties cannot agree, the commission is issued to any judge, or justice of the peace, or commissioner selected by the officer issuing the commission. Code of Proced. Sec. 2024.

The examination of the witness need not be in answer to written interrogatories in respect to the question in dispute, if the parties so agree. The officer is required to certify the deposition to the Court in a sealed envelope, directed to the clerk, or other persons designated or agreed upon, and forwarded to him by mail, or other usual channel of conveyance. Code of Proced. Sec. 2026.

113.

Form of caption and certificate.

Deposition of a witness sworn and examined under and by virtue of a commission issued out of the Court of, in and for the county of -, in the State of California, in a certain cause therein pending between John Doe, plaintiff, and Richard Roe, defendant.

of [state residence of witness] being duly sworn to speak the truth, the whole truth, and nothing but the truth, deposes and says as follows:

To the first interrogatory he says, etc.

CALIFORNIA-CONTINUED.

STATE OF CALIFORNIA,
County of

I, Holland Smith, the commissioner named in the said commission, do hereby certify that the witness appeared before me, and, after being duly sworn, his evidence was taken down, and read over and corrected by him, after which he subscribed the same in my presence, on the day of -, at my office, 309 Montgomery Street, in the city and county of San Francisco, and that I have personal knowledge of the said witness [or proof was made of his identity].

18

In witness whereof, I have hereunto set my hand and official seal, the day and year aforesaid. HOLLAND SMITH, [Seal.]

Notary Public.

COLORADO.

Depositions out of the State may be taken on commission issued to any number of persons not exceeding three, or to any judge or justice of the peace of the county where such witness may reside. Rev. Stat, p. 311.

Before examination, the witness shall be sworn, or affirmed, to testify the truth in relation to the matter in controversy so far as he or she may be interrogated, and then the answers of such witness in response to the interrogatories shall be written down, and signed by such witness; after which it shall be the duty of the person or persons taking the deposition to annex at the foot thereof a certificate subscribed by him or them, stating that it was sworn to and signed by the deponent, and the time and place where the same was taken; and the depositions and exhibits, together with the commission, shall be inclosed, sealed up, and directed to the clerk of the Court wherein the action is pending, with the names of the parties litigant indorsed thereon.

When a judge or justice of the peace acts as a commissioner, his official character must be certified to under the great seal of the proper Court of the county or city where such deposition is taken. Rev. Stat. p. 313.

The form for Arkansas may be used, certifying that the witness was sworn to testify the truth in relation to the matter in controversy, as the statute above requires.

CONNECTICUT.

When any witness in a civil action lives out of the State, or more than twenty miles from the place of trial, is going to sea, or out of the State, is sixty years old, or by age or infirmity is unable to