Frederick Mortensen Hinch Edward Mills John.

American notary and commissioner of deeds manual: the general and statutory ... online

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special commission from this territory. The officer must not be inter-
16



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242 NOTARIES PUBLIO. [§ 387

ested in the case nor related to either party. Anj court of record of
the state or any judge thereof can grant a commiBsion to take. The
commission, name of the officer who takes, must be un^er the seal of
the court. Deposition must be upon written interrogatories, unless
parties agree otherwise. Unless by special commission, written notice
to be given the adverse party, specifying action, court, time and place,
allowing time for travel and one day for preparation, exclusive of
Sunday and day of service. May adjourn from day to day, if notice
80 stetes. When adverse party is absent, or a nonresident, and has no
representative in the state, three consecutive weeks' publication in
a county paper is required. The deposition must be written in the
presence of the officer, Either by him, the witness or a disinterested
person, signed by the witness, sealed up, and indorsed with the title
of the case, name of the officer, certified to ' by him, addressed and
transmitted to the clerk ef the court, and remain under seal until opened
by order of court. The officer's certificate must state the above facts
and that the witness was first sworn to the truth, the whole truth and
nothing but the truth; it must be filed in court one day before trial.
FEES — allowed: swearing each witness, 10c; each subpcena, attachment
or order of commitment, 50c; each 100 words, including certificate, 15c.
Deposition may be retained until fees are paid.

{ 387. Oregon — May be taken in or out of the state in an action
at laW| any time after the service of summons or the appearance of
the defendant, and in special proceedings any time after a question of
fact has arisen. In this state, when the witness' residence is such
that he is not obliged to attend on a subpoena, is a party to the action,
is about to leave the county and go more than twenty miles from place of
trial, is infirm, when the testimony is required upon a motion, or where
the oral examination is not required. May be taken in this state before
the clerk of a court of record or other person authorized to administer
oaths, three days' notice to be given the adverse party if not over
twenty-five miles, and one day additional for every twenty-five miles,
unless the courts direct otherwise. Either party may attend and ex-
amine. Deposition to be written by the officer, or by the witness or
some disinterested person in his presence. When completed it shall be
read to or by the witness and subscribed by him. Officer to certify the
above was done (under his official seal, if he have one), and at a place
mentioned, between certain hours of a day or days mentioned, and that
the witness was first sworn to the truth, the whole truth and nothing
but the truth. Same to be inclosed in a sealed envelope, directed to the
clerk of the court or the justice of the peace where action is pending,
and forwarded by mail or the usual channel. It may be used by either
party, at any time. The testimony of a witness may be taken condi-
tionally and perpetuated in the usual manner. Without the state, may
be taken upon commission issued by the court, or without a commission
by the commission appointed by the governor of this state to take
depo^tions in other states or counties. The commission may be issued
by the clerk of the court, or by a justice of the peace in a cause in his



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§ 388] DSP0S1T10N8. £43

court, on the application of either party, npon 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 a judge, justice of the peace, notary public,
or clerk of a court, selected by the officer issuing it. Interrogatories,
direct and cross, as the parties may prepare, or the clerk or justice,
may be annexed to the commission, or if the parties agree, without
written interrogatories. Commission shall authorize the commissioner to
administer an oath to the witness, to take deposition as per interroga-
tories, or in respect to the question in dispute, to certify to the court
in a sealed envelope directed to the clerk or justice issuing same, or
other person designated, and forwarded to him by mail, or other channel.
In any other state it may be taken before a commissioner appointed by
the governor of this state for that purpose upon giving the adverse party
eight days' notice of the time and place, name of the commissioner and
the witness, if the distance of the place of examination, from the place
where the testimony is to be used, does not exceed fifty miles, and one
additional day for every additional twenty-five miles. Either party may
attend, and examine the witnesses upon oral interrogatories, but if
either party by written notice to the other, within three days from the
service of the original notice, requires it, it shall be taken or written
interrogatories to be settled, if not agreed upon, by the same officer
and in the same manner as in case of deposition upon commission and
in such case the deposition shall be taken, certified and directed by the
commissioner in the same manner as a deposition upon commission.

I 388. Pennsylvania — ^Upon the affidavit of either party or their
agent, that the testimony of any material witness is wanted, who resides
out of the county, or from infirmity, or other causes, cannot be ob-
tained personally, a cause shall be postponed to a certain day, within
such reasonable time as the distance of the witness, the season of the
year and the circumstances of the roads may render it proper, to obtain
the deposition of the witness wanted; and whenever a cause is post-
poned at the instance of the defendant, he shall enter into a recognizance
for a sum sufficient to cover the demand in question together with
the costs, with one sufficient surety (for his appearance on the day
fixed), and whenever a rule for taking the deposition of a witness or
witnesses shall be applied for, as aforesaid, the party so applying shall
file a copy of the interrogatories or questions intended to be asked the
witnesses; and a copy Of the same shall be delivered to the opposite
party or his agent, who may also file such additional questions as he
may think proper, provided, it be done within four days after receipt
of the copy; which rule and interrogatories being certified by the justice
before whom the eause is pending, shall be sufficient authority for the
justice who may be named in said rule, to take the answers of such
witnesses as may be named therein; btit where the witnesses reside in
the county, or in cases where the parties or their agents agree to enter
a rule to take depositions, it may be done without filing interrogatories,
upon notice given, agreeably to the rule, of the time and place appointed
for the examination. Testimony so taken shall be read in evidence on



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244 KOTARIES PUBLIC. [§ 389

the trial before the justice or referee. Either party may obtain testi-
mony out of the state for causes pending before a justice of the peace
in the same manner. When not convenient to take before a justice of
the peace, a commissioner may be appointed^ at the suggestion of the
party or parties, who on receipt of his commission, with a copy of the
rule and interrogatories, certified by the alderman or justice of the
peace, shall have authority to administer oaths and take the answers
of the witnesses named. Same shall be as good as if taken before a
justice of the peace. A court of common pleas, on receipt of letters
rogatory from any court in the United States, may compel the attend-
ance of witnesses, penalties to be attached, and a fine not exceeding $100
imposed. Examiners or commissioners may on request appoint a stenog-
rapher; court to direct compensation together with such reasonable*
additional amount as the examiner may suggest, including traveling and
hotel expenses and extra services.

I 389. PhiUpplne Islaildji— OUT OF THE PHUJPPINB ISLANDS—
dopositions may be taken by a rommission issued by the court under its
seal upon five days' notice to the adverse party. If the court be that
of a justice of the peace the commission shall have attached to it a
certificate under seal, by the clerk of the court of first instance of the
province in which the court is held, to the effect that the person issuing
the same was an active justice of the peace at the time. WITHIN THE
UNITED STATES — if issued to any place, it may be directed to any
person agreed upon by the parties, or to any justice of the peace, any
federal or state judge, to any commissioner so authorized to take. OUT
OF THE UNITED STATES — ^to any minister, ambassador, consul, vice
consul or consular agent of the United States or to any person agreed
upon by the parties. Interrogatories may be attached to the commission.
Witness to be sworn, the deposition to be certified to the court in a
sealed envelope directed to the clerk or person designated and for-
warded to him. IN THE ISLANDS — taken before any judge, justice
of the peace or notary public on serving the adverse party two days'
notice with an affidavit showing that witness is party to action or mem-
ber of corporation which is party, or person for whose benefit action
is prosecuted or defended; that witness resides out of province, is
about to leave province and will be absent; that witness is too ill or
infirm to attend; that oral examination is not required and that witness
is material. Reasonable time must be given the adverse party to be
present. Either party may attend and put such questions direct and
cross as may be proper. Deposition must be read to the witness and
corrected by him if desired; he must subscribe to it and the officer
certify to it, seal in a wrapper, direct and deliver it to the clerk of the
court or to such person as the parties agree on in writing. The deposi-
tion must be written by the officer, or in his presence and under his
direction by a disinterested person. May be taken stenographically.

I 890. Bliode Island — ^Except in equity causes, any justice of the su-
preme court, justice of the peace, or notary public, may take depositions



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§ 390] DBPOSITIONS. 245

of any witness to be used in the trial of a civil suit where he is a disin-
terested party and commenced or pending in this state or any other
state or country, the adverse party or his attorney to be notified as
to time and place, before the taking. If his residence or his attorney
be unknown, the justice shall prescribe the method of notice. The
notification shall be issued to a disinterested party by the commissioner
at least twenty-four hours, exclusive of Sundays and holidays, before
the taking. It shall be read to the party, if found, otherwise, a copy
to be left at his usual abode; manner and time of service to be returned
and sworn to before some officer authorized to take oaths. Any person
may be compelled to appear and depose within this state. The supreme,
probate or district court may, on motion of either party in an action
pending therein, grant a commission to take depositions. IN THIS
STATE — to be used in any other state or country, may be taken before
any person residing in this state to whom a commission shall be directed.
OUT OF THE STATE — to be used in this state, may be obtained on an
order from the trial court, and taken according to the law of such
state or country, or if within the United States, it shall be taken before
a commissioner appointed by the governor of this state, or a judge,
chancellor, justice of the peace, notary public, or civil magistrate of
such state. OUT OP THE UNITED STATES— before a resident United
States official or if the deponent be in the military or naval service of
the United States, before a colonel, lieutenant colonel or major in the
army, or before any officer in the navy not below the grade and rank
of lieutenant commander. The deponent shall be sworn to testify the
truth, the whole truth and nothing but the truth, and after giving testi-
mony, shall subscribe to it in the presence of the officer taking it. The
deposition may be reduced to writing by the officer or by any one under
his direction and in his presence, or taken in shorthand and a transcript
made in long hand, typewriting, print or other reproduction sworn to
by the person reporting it, and signed by the deponent. The signature
in the latter case, to be attested by the officer. The deposition to be
delivered by the officer's own hand to the court, or shall, together with
a certificate of its having been taken, be by the officer sealed up and
directed to the court, and delivered to its clerk. For depositions in
perpetual memory, the same methods are employed as in other deposi-
tions. The officer taking has the same power and authority as magis-
trates in acting. They can compel attendance and testimony. If party
entitled to notice resides outside the state he may be served by any
disinterested person. After taking, it shall be, sealed up, with the
petition, and directed to the clerk of the common pleas division of the
supreme court in the county in which some one of the parties notified
of the taking reside; if they reside outside of the state, then in the
county in which the person preferring the petition resides; in case
both parties reside outside the state, then in Providence county. The
clerk, on its receipt, sealed and addressed, shall open and record it, on
payment of the legal fees, noting on same the time received, page of
the book where recorded, and return it to the party. If not recorded, it



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246 N0TARIB8 PUBLIC. [8 3^1

cannot be received as evidence in any court in this state, unless it is
opened in the conrt at the time of the hearing of the cause in which
it is used.

I 391. Soatli Oarolina — Any judge or clerk of the circuit court has
power to grant commissions, under the seal of the court, directed to two
or more commissioners, to take the depositions in writing of the wit-
ness or witnesses therein mentioned, where the witness resides with-
out the state or county, or at a greater distance than one hundred
miles from the court, or is about to go without the limits of the
state before the next term of court or before trial, or when his pres-
ence cannot be procured by attendance on some public official or pro-
fessional duty as an attorney at such time, or by reason of sickness or
infirmity. Ten days' notice to be given the adverse party with copy
of interrogatories propounded. The application must be accompanied
with an affidavit showing the necessity for the taking. Either party
may, in the court's discretion, on motion, and a showing that two days'
notice has been given the adverse party or his attorney, be entitled to
a rule to compel the attendance of any witness residing in the county,
or not more than thirty miles from the court. The testimony of an
officer in a lunatic asylum may be taken by commission. Subpoenas may
issue for witnesses to attend before the commission at a certain time
and place not more than fifteen miles from his residence and answer on
oath according to their knowledge the interrogatories and cross-interrog-
atories annexed to the commission. Persons unable to leave home by
reason of sickness, age or infirmity shall be attended by the commis-
sioners, and in case of their refusal to give evidence or answer the inter-
rogatories, etc., they shall be liable for damages to the party injured.
Clerks of the court of common pleas may take depositions, ten days'
notice having been given the adverse party. All privileges and powers
allowed as before the court. Clerk's fee for each witness, one dollar.
Depositions de bene esse may be taken in civil actions ponding in
the court of common pleas where the witness lives outside the county
or more than one hundred miles from court, or is bound for sea, going
out of the state or county, or is aged or infirm. Same may be taken
before any circuit court, judge or clerk, any trial justice, notary pub-
lie of this state, chancellor, justice or judge of a superior or supreme
court, mayor or chief magistrate of a city, trial justice, judge of a
county court or court of common pleas or any of the United States or
Dominion of Canada or Kingdom of Great Britain, or any notary pub-
lic not being of counsel or attorney. Notice of ten days must first be
given in writing by the party or his attorney to the adverse party,
with notice of time and place. If impracticable, the judge of any cir-
cuit court shall determine how notice to be given. MANNEB OF TAK-
ING — witness to be sworn to testify the whole truth. Testimony to be
reduced to writing by the officer or by the witness in officer's presence
and by no other person, to be subscribed to by the witness, delivered
into the court by the hand of the officer, or with a certificate of rea-
sons for taking, and the notice given adverse partj^ be sealed up and



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S 393] DEPOSITIONS. 247

direeted to the court by the officer and forwarded by mail or express.
If witness is able to appear at the trial, the deposition shall not be used.
(X)NTEMPT OF COURT— an attachment may issue from any circuit
court for failure of the witness to answer the subpoona for attendance.
Commissions issued out of any United States or other state courts for
the examination of witnesses in this state, produced to a judge of the
supreme or circuit courts of this state, shaU have the same considera-
tion as if issued by a court of this state and subpoona issued, with same
fees and contempt proceedings as allowed in this state. Two days'
time to be allowed the witness before attendance is required. He is en-
titled to same fees for each day's attendance as allowed in civil cases,
with necessary ferriages going to and coming from, to be paid by the
party requiring the deposition. Commissioners are authorized to retain
the deposition until same is paid.

I 392. South Dakota— IN THIS STATE— may be taken by a judge or
clerk of the supreme, circuit, municipal or county court, a justice of the
peace, notary, United States commissioner or any person empowered by
a special commission. OUTSIDE THE STATE — by judge, justice or
ehancellor or clerk of any court of record, justice of the peace, notary,
mayor or chief magistrate of a titj or town corporate, a commissioner
appointed by the governor of this state, or any special commission.
Officer must not be a relative or attorney of either party or interested
in the action. Any judge or court of record of this state can appoint a
commission to take, under seal of court. WITNESSES — notary can is-
sue subpcena for. For failure to attend, the notary can issue attachment.
Notice to be given to adverse party allowing sufficient time to attend
and one day's preparation, exclusive of Sunday and day of service.
If a nonresident, it may be by publication for three weeks in county
newspaper. Deposition when taken must be written by the officer, or
in his presence by the witness or some disinterested person, must be
subscribed to by the witness, sealed up, indorsed with the title of the
case, name of the officer taking, addressed and transmitted to the clerk
of the court where action is pending, to be filed at least one day before
trial. Officer must state in his certificate that the witness was first
sworn to tell the truth, the whole truth and nothing but the truth.
That the deposition was reduced to writing by some proper person,
naming him. That the deposition was written and subscribed to in hia
presence, giving the time, date and place specified in the notice.

I 393. Tannessee — ^May be taken when the witness, from age, infirm-
ity or other cause, is incapable of attending at the trial or resides out of
the state, or residing in another county of the state, in which case
the adverse party may have him subpcenaed; when leaving the state,
or is the only witness to a material fact, or an officer of the United
States, the state, or the county, or clerk of another court of record,
a member of the legislature in session, clerk or officer thereof, a prac-
ticing physician or attorney, a jailer or keeper of a public prison in
another county; when he is a notary public, whether a suit be pending



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248 NOTARIES PUBLIC. [§ 393

or not; to be evidence between the same parties in any suit then, or
thereafter pending, should the notary die or remoye out of the state
before the trial; when the suit is brought in forma pauperii. The depo-
sition of any person residing in the county may be taken by either
party, but the opposite party may summon the witness, in which case he
shall be examined as if summoned by the party taking the deposition.
It may be taken any time after action brought, upon such notice as
the court or justice may order, or upon giving the usual notice. Party
exempt from attending must claim at the time; he may claim exemption
by application to the court. The adverse party may compel the attend-
ance in court, of the deponent, unless witness is exempt by law. Witness
may be cross-examined by any court or justice of the peace before
whom an action is pending, may make orders and issue commissicms to
take depositions, upon application of either party. The clerk or his
deputy may act in like manner. Court or justice may prescribe notice.
Parties may take without a commission, upon giving opposite party
notice of time and place or by filing interrogatories. May be taken in
this state for use in any other state, or foreign government. Attendance
of witnesses may be compelled, by implication, to any judge of the su-
perior courts of the state, or to any justice of the peace of the county.
Witness to have two days to prepare and not obliged to leave the county.
Service and return of the subpcena to be in the usual way and failure
of witness to appear subjects him to the penalties of the law. Witness
fees to be allowed as in cases in this state. Time of notice, five days.
If out of the county, for 50 miles or less, 5 days; 50 to 100, 10 days;
between 100 and 250, 15 days; 250 to 400, 20 days. If to be taken in
another state west of the Bocky Mountains, such time as the court
or clerk may order, not over 40 days. In foreign countries, as the court
or clerk may order. Service may be made by the sheriff, coroner or
constable, with the usual return notice. Service of notice as to time
and place may be made on the attorney of a nonresident. If the wit-
nesses reside out of the state or over 150 miles from place of trial,
either party may take the deposition by filing interrogatories with the
clerk, giving opposite party notice, who shall have ten days to file cross-
interrogatories. Officer taking is vested with all the powers of a court,
and to control the conduct of the parties, the officer to swear the witness,
the questions to be reduced to writing before being put, and read to the
witness, the answers to be written down and then read to or by the
witness may be typewritten. When deposition is complete, it shall be
enveloped, together with the commission and other documents, sealed,
the commissioner's name written across the seal, and directed to the
elerk of the court, title of cause indorsed thereon and sent to the clerk
of the court. If sent by private conveyance, the person delivering
must make an affidavit to the clerk that papers have not been out of
his possession or opened since received by him. The court or clerk may
determine whether notice shall be given to each person where more than
one person is plaintiff or defendant. The clerk shall certify in the
deposition how received. The commissioner can subpoena witnesses.



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§ 394] DEPOSmOKS. 240

Penalty for failnre to appear may be enforced by the tribunal having
cognizance of the snit as in other cases. Bepositioni may be taken by
any judge, justice of the peace, mayor or chief magistrate of a town or
city, the clerk of any court, or any person properly commissioned or ap-
pointed by the court or clerk, not being interested, of counsel or
related to either party, any notary public, in his county, and his certifi-
cate to show the county. Persons may have testimony perpetuated by
petitioning the circuit or chancery court judge j he will fix the time
and place. Notice to a nonresident may be given by publication in such
paper as the judge directs. The evidence of a notary public may be
taken and perpetuated in matters officially done by him, without peti-



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 30 of 50)