Frederick Mortensen Hinch Edward Mills John.

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

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tion, upon notice to the other side. Deposition of a notary may be
taken, whether a suit be pending or not, on ten days' notice to the
opposite party, if resident in the state, and forty days' notice out of it,
to be read as evidence between the parties in any suit then or after-
wards pending, should the* notary die or remove from the state before
the trial.

§ 394. Texas — ^May be taken when the witness is a female, is aged,
infirm, sick, or when official duty prevents attendance at court; when
witness resides without the state or county, or i^ about to leave the
state or county, and probably cannot be at the trial, or to perpetuate
testimony. May be taken when residents or not of the county where
suit is pending, provided, the failure to secure same shall not be re-
garded as want of diligence. The party shall file with the court clerk, or
justice of the peace, as may be, a notice of his intention with interroga-
tories attached. The notice to state name and residence of witness, or
where he can be found, and the suit to be used in. A copy of all shall
be served on the adverse party, or his attorney of record, five days be-
fore the commission issues. If the adverse party is a corporation, or
joint stock association, service may be on its president, secretary,
treasurer, or local agent in the county where the suit is, or by leaving it
at the principal office of such corporation during office hours. On an
affidavit, that either party is beyond the jurisdiction of the court, or
cannot be found, or that he has no attorney of record, or his claimants
have not become parties to the suit, and are unknown; by the party
wishing the deposition, the clerk or justice of the peace shall cause
a notice to be published in some newspaper for thirty days, stating the
number of the suit, names of original parties, the court where pending,
name and residence of witnesses, that a commission will issue on or after
the thirtieth day. The style of the commission shall be, "The State of
Texas"; it shall be dated and tested as other process; addressed to the
officer, authorizing and requiring him to summon the witness before him
forthwith, to take his answers under oath to the direct and cross-inter-
rogatories, if any; a copy shall be attached to the commission, and to
return without delay the commission and intorrogatories and the answers
of the witness thereto, to the clerk or justice of the proper court, giving
his official and post office address. Cross-interrogatories may be filed by
either party before commission issues. WHO MAY TAKE — ^IN THE



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250 K0TARIE8 PUBLIC. [§ 395

STATE — any clerk of the district court, *ny judge or clerk of the county
court or any notary pnblic of the county. IN ANY OTHER STATE — a
clerk of a court of record having a seal, a notary, or commissioner of
deeds in that state appointed by the governor of this state. IN FOR-
EIGN COUNTRIES — a United States minister, commissioner, charge
d'affaires, consul general, consul, vice consul, commercial agent, vice
commercial agent, deputy consul, or consular agent resident in such
country, or any notary public in that country. If witness fails to appear
he shall be subpoenaed through the sheriff or constable of the county.
Attachment, fine and imprisonment may follow. The answers shall be
written, sworn to and signed by the witness. The officer shall certify
that they were so taken before him, and seal it in an envelope with the
commission and interrogatories, etc., write his name across the seal,
indorse on the envelope the names of the parties to the suit and the
witnesses, direct it to the clerk of the court or justice from whom issued.
An interpreter may be summoned and sworn by the officer. Return
may be made by mall, the party interested or other parties. The post-
master or his deputy shall indorse their receipt upon them, the clerk
or justice likewise. If sent other than by mail, party shall make affi-
davit before the clerk or justice that he received them from the officer
and that they have not been out of his possession nor undergone any
alteration. It may be opened by the clerk or justice at the request of
either party or counsel; he shall indorse upon them the date and at
whose request they were opened, signing his name; they shall remain on
file for either party's inspection. When cross-interrogatories have been
filed and answered, either party has the right to use the deposition.
When the deposition has been filed in court one day before trial, any
objections to them shall be in writing and notice given to opposite
counsel. They shall be read, subject to legal exceptions. Surplusage
may be stricken out by the court upon objections thereto. Deposition
to perpetuate testimony may be made through the proper county court,
after the same manner.

I 895. irtali — The testimony of a witness out of this state may be
taken by deposition 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. IN THIS STATE — ^may be taken
when the witness is a party to the aetion, or a person for whose im-
mediate benefit the action is; when he resides out of the county in
which his testimony is to be used; when he is about to leave the eounty
where action is, and will probably be absent when required; when in-
firm, or his testimony is required on a motion, or in any other case where
the oral testimony is not required. OUT OF THE STATE — ^for use in
the state — may be taken upon a commission issued from the court
under its seal, upon an order of the judge, or court, or justice of the
peace under his hand in any case pending before either of such courts;
on the application of either party, upon five days' notice to the other.
If issued to any place within the United States, it may be directed
to any person agreed upon by the parties, or, if they do not agree,



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§ 396] DEPOSITIONS. 251

to anj Judge or notary pnblic, or person named or commissioned by
the officers issuing it. ANT COUNTRr OUT OP THE UNITED
STATES — it may be directed to a United States minister, ambassador,
consul, vice consul or consular agent in the country, or to any person
agreed upon by the parties. Parties may prepare their interrogatories^
direct and cross; if they disagree, then the officer granting the com-
mission shall prepare, at a day fixed in the order. If the parties agree,
it may be without written interrogatories. Depositions for use in other
states may be taken where witness resides in this state. If a com-
mission has been issued, by producing same to a district or probate judge
here, with satisfactory affidavit as to its necessity, he may subpoona the
witness to appear and testify before the commissioner at a specified
time and place. If a commission has not been issued, a district or
probate judge, or justice of the peace, may, on the presentation of a
satisfactory affidavit, subpoena the witness to appear before him and
testify. The testimony to be taken in writing, certified and transmitted
to the court or judge requiring same, as the law of the state requires.
May be taken in this state, before a judge or officer authorized to ad-
minister oaths, on at least five days' notice to the adverse party of the
time and place of examination, together with a copy of an affidavit
showing that the case is within the statute; allowing also one day for
every twenty-five miles of distance to the place of examination from the
residence of the party, unless, for cause shown, a judge by order pre-
scribes a shorter time, copy of which must then be served with the
notice. Either party may attend the examination and put proper ques-
tions. The deposition must be read to the witness, corrected if desired,
subscribed to by him, certified to by the officer, inclosed in an envelope,
sealed and directed to the clerk of the court where action is pending, or
to such person as the parties in writing may agree and delivered person-
ally or by malL It may be used by either party at the trial. Depo-
sitions to perpetuate testimony may be taken when required.

I 396. Vermont—WHO MAY TAKE— IN THE STATE— justices,
notaries, masters in chancery, municipal and city judges, judges and
registers of probate, shall have the same powers. Notary need not use
his official seal. A resident commissioner of another state may take
for use in the state of his appointment OUT OF THE STATE— a su-
perior judge may, in vacation, upon the application of a party in a suit
pending in a county court, and on such notice to the adverse party, or
his attorney, as the judge thinks reasonable, cause the clerk of his
court to issue a commission to a person designated, to take the testimony
of a person residing, or without the state; it shall be taken upon inter-
rogatories settled by the order of the judge upon oral examination.
May be taken by a justice so authorized by his state and a commis-
sioner appointed by the governor of this state. Depositions of witnesses
without this state, taken agreeable to the laws of this state, or of the
state or country in which they are taken, shall be allowed in any
court. TIME AND MANNER — may be taken at any reasonable time
after suit is eommenced, in whatever court the suit it ponding, or while



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252 N0TABIE8 PUBLIC. [§ 397

loit is passing from one court to another. The party desiring it shall
cause personal notice to issue from the magistrate taking, to the adverse
party, or by citation signed by a justice, municipal or city judge, notary,
or master in chancery, served like a writ of summons on the adverse
party, or if he resides out of the state, on his attorney, if in the state.
Such notice to state the time and place of taking, the name of the
magistrate, give reasonable time to be present. A party may, without
notice, take a deposition when the adverse party is a nonresident and
has no attorney in the state; but such deposition shall be filed in court
where the cause is pending at least twenty days before the trial. A
magistrate of competent authority shall issue subpcenas for witnesses
at the request of either party. Attachment may issue to compel at-
tendance, and a forfeiture of $10 and all just damages paid the party
in whose behalf he is summoned. Befusing to depose when fees have
been tendered shall cause commitment to jail, until he deposes and
pays costs of commitment. Deposition cannot be used unless the officer
to take has appeared at the place within two hours of the time men-
tioned in the notice. The deposition subscribed and sworn to by the
witness, the authority taking shall certify it, seal it up, and deliver it
to the person at whose request it was taken, superscribed, ''The within
deposition of A. B. was taken and sealed up by C. D. (adding his official
designation)." No interested person can write the deposition. If re-
turned to the clerk of the court unsealed or with the seal broken, it
shall be rejected by the court. The provisions for taking to be used in
the courts of this state shall be applicable to the taking of depositions
to be used in courts without this state. Testimony in perpetuam may
be taken on affidavit before a judge of the supreme, superior, county,
municipal or city court.

I 3d7. Virginia— IN THE STATE— may be taken by a justice or
notary or a commissioner in chancery and, if certified under his hand,
may be received without proof of the signature. OUT OP THE STATE
— ^if the party resides out of this state, or is out of it in the service
thereof, or of the United States, it may be taken before any commis-
sioner appointed by the governor of this state, any justice, notary, or
other officer authorized to take depositions in the state where the witness
may be. IN A FOEEIGN COUNTRY— before any person that the par-
ties may agree upon in writing, or any American minister plenipoten-
tiary, charge d'affaires, consul general, vice consul, commercial agent
appointed by the go\ ernment of the United States, or any other repre-
sentative of the United States in a foreign country, or the mayor, or
other magistrate of any city, town or corporation in such country or any
notary therein. The officer may administer an oath to the witness, take
and certify the deposition with his official seal annexed; if he have
none, then the genuineness of his signature shall be authenticated by
some officer of the state or country, under his official seal, unless the
deposition Is taken by a justice out of this state, but in the United
States, or before some person agreed upon in writing by the parties,
in which case it shall be received without any seal or authentication of



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§ 398] DEPOSITIONS. 253

the signature. If taken before some person agreed upon in writing by
the parties other than the officer authorized to take, the said writing
must accompany the deposition, or the deposition cannot be read. No
commission is necessary to take a deposition except for proving a will.
Beasonable notice to be given the adverse party of the time and place
of taking. The deposition may be used in several suits between the
same parties involving the same controversy. Notice may be served on
the party's counsel, if the party is a nonresident. The deposition may
be retaken without the consent of the court first obtained, if discreet.
Depositions may be read in the case when the witness is dead, out of the
state or one of its judges, or a superintendent of a lunatic asylum
distant more than thirty miles from the place of trial, or in any public
service or office, the duties of which prevent his attending the court,
or be unable to attend from sickness or infirmity, or be more than a
hundred miles from the place of trial. The latter may not excuse, if
good cause be shown the court. When completed it shall be certified and
returned, by the officer taking it, to the clerk of the court where the
case is pending or to the person before whom it is to be read. When
received, the clerk or other person to whom sent, after indorsing thereon
the time it was received, shall file it among the papers of the suit. It
may be read by either party. Testimony may be perpetuated by filing
with a commissioner in chancery a petition stating the matter.

§ 398. Washington^ — ^May be taken to be read in evidence in an ac-
tion when witness resides out of the subdistrict (county), more than
twenty miles from the place of trial; is about to leave and go more than
twenty miles from the place of trial and remain; is "^ick, infirm, aged
and unable to attend trial, or resides out of the state. Either party
may commence taking testimony after service of summons upon the
defendants. IN THE STATE— may be taken before a judge of the
superior court, justice of the peace, clerk of the supreme or superior
court, mayor of a city, or notary public. Notice to be served on the
adverse party, his agent or attorney of record, with time to attend by
the usual route and three days' preparation, exclusive of day of service
and the examination day; notice to state if any adjournment, also to
specify the tribunal where it is to be used and the time and place of
taking. Officer may compel attendance of witnesses within twenty miles
of his abode, under penalty. OUT OF THE STATE — may be taken by a
judge, justice or chancellor or clerk of a court of record, justice of the
peace, notary, mayor, chief magistrate of any city or town, or by a
special commission from any court of this state. Commission to take
in or out of the state may issue from any superior court or judge
thereof. The commissioner must be named in the commission by the
clerk, under the court seal; deposition must be upon written interroga-
tories, unless the parties otherwise agree. Before granting, the party
applying shall serve notice of application on the adverse party, stating
time and place, notice to be .served as before stated. The court or judge
shall settle the interrogatories the clerk shall attach to the commission,
if the adverse party is a nonresident and has no agent or attorney



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254 NOTARIES PUBLIO. [§ 399

therein, notice maj be bj three conseeutive weeks' pnblieation in
the county newspaper. If not printed, then in a state paper circulat-
ing generally in the county. It must contain all that is required in
the notice and proved by affidavit. Deposition to be written by the
officer or by the witness, or some disinterested person, in the presence
and under the direction of the officer. It shall be carefully read to or
by the witness, corrected and subscribed to by him. If taken up on
notice it shall be certified by the officer. The officer to inclose it in an
envelope, seal and direct it to the clerk of the court or justice, where
case is pending, or as the parties in writing may agree. Delivery by mail
or in person. It may be used by either party at the trial. It may be
used in any other action in the same cause, between the same parties;
provided, it shall have been filed with the court in the meantime.
May be used on appeal. Deposition to perpetuate testimony may be
taken on a sworn statement in writing by the party in interest, by
filing same in the superior court. If pertaining to land, it shall be
filed in the county where the land lies; in other eases, where the parties
reside.

I 899. Wett Vlrginia^May be taken in case pending, without a
commission in or out of the state, by a justice or notary, commissioner
in chancery, or before any officer authorized to take, in the county or
state where they may be taken, and if certified under his hand, may
be received without proof of the signature. On an affidavit that a wit-
ness resides out of the state, or is out of it in the service thereof, or of
the United States; his deposition may be taken by or before any com-
missioner appointed by the governor of this state, or any justice, notary,
or officer so authorized to take in the state where the witness may be.
If in a foreign country, by or before such commissioner or commissioners
agreed on by the parties or appointed by the court, or before any
United States American minister, plenipotentiary, charge d'affaires,
consul general, consul, vice consul, consular agent, vice deputy con-
sular agent, commercial agent or vice commercial agent, or by or be-
fore the mayor or other chief magistrate of any city, town or corpora-
tion in such country or any notary public thereof. The person taking
may administer an oath to the witness, take and certify the deposi-
tions with his official seal annexed, and, if he have none, the genuine-
ness of his signature shall be authenticated by some officer of the same
state or country, under his official seal; reasonable notice to be given
the adverse party of the time and place of the taking. In a suit in
equity, a deposition may be read if returned before the hearing of the
cause, although after an interlocutory decree, if it be as to a matter
not thereby adjudged, and be returned before a final decree. In a case
at law, when taken on such notice, it may be read in such case, if when
offered the witness be dead, out of the state, or one of its judges, or
in any public office or service, the duties of which prevent attending
the court, or sickness, infirmity, out of the county where case is pend-
ing; the latter, on motion to the court before trial, may not excuse.



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§ 400] DEPOSITIONS. 255

After filing it may be read by either party. Depositions to perpetuate
testimony may be taken on petition to a commissioner in ehaneery.

I 400. Wlscoiudii — May be taken on application to the court or pre-
siding judge; court to determine whether on verbal or written interog-
atories; the deponent to be sworn, officer taking to insert every answer
or declaration; deposition to be read and subscribed to by the witness,
unless waived by counsel and so noted, sealed and delivered to the clerk
of the court where matter is pending. IN THE STATE — may be taken
by a justice of the peace, notary, court commissioner or other authorized
officer; any^time after action begun, notice to adverse party, agent, or
attorney, giving witnesses' names, officer, time and place. Three days'
notice and one day for each 300 miles or fraction. When taken without
the state, commission may is^e from any court of record. The party
desiring it may prepare his interrogatories, state the commissioner pro-
posed name of witness, residence of each, serve a copy on the adverse
party; within ten days commission will issue, subject to the objections
of adverse party. OUTSIDE THE STATE— may be taken before any
judge or justice, court commissioner or master in chancery of any court of
record in the United States or state, notary, justice of the peace, commis-
sioner of deeds appointed by the governor of this state, or special com-
missioner. If for use in a court not of record, not more than thirty days '
notice to be given; if for a court of record, ten days' notice to be given.
One day's notice shall be sufficient in case of the depositions of addi-
tional witnesses desired to be examined, given during the course of the
taking of any deposition where the parties on each side appear. In
case the officer fails to appear, it may be taken before any other officer
authorized by law. But in any action, in any court, no notice of the
taking need be given to a defendant, who, having been served with
process, fails to appear within the time allowed. IN A FOBEIGN
OOUNTBY — may be taken by commission by any judge or clerk of a
court of such country, any notary, consul, vice consul, deputy consul
or consular agent of the United States, resident in such country, by
any officer authorized by the laws of the United States, or by a com-
missioner or commissioners, whether otherwise authorized or not, ap-
pointed for that purpose by such commission. When it shall appear to
the judge of the court from which the commission issues that the witness
is unable to speak or understand the English language, such judge may
appoint a competent and disinterested person to translate the commis-
sion, rules, interrogatories, etc. Same shall be sent to the commissioner
in place of the original papers, or such as have been translated. Upon
the return of the commission and deposition such judge shall in like
manner cause the same to be translated into English, and all other
proceedings; such transaction shall be filed. The translator shall ap-
pend his affidavit to the translation, stating that he knows both lan-
guages and that he truly translated and that it is correct; the same
effect shall be had as if all the proceedings were in English, but the
trial court, upon the deposition being offered in evidence, may admit
the testimony of witnesses learned in such foreign language for the



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256 KOTARIEB PUBLIC. [§ 401

correetioii of erron, and if it shall appear that the first translation was
in anj respect so incorrect as to mislead the witness, the court may in
discretion continue the cause for the further taking of testimony. Sub-
poena may issue compelling attendance of witnesses in this or other
states. PEES — ^witness, per day, $1.50; half day, 75c; copying papers,
10c per folio; travel, 4c per mile each way in the state; justice taking
12c per folio. Each party to pay his commissioner and witnesses.

I 401. Wyoming— IN THIS STATE— may be taken before a judge or
clerk of the supreme or district court, a justice of the peace, notary
public, mayor or chief magistrate of a municipal corporation, or any
other person authorized to administer oaths, or any person empowered
by a special commission. OUT OP THE STATE — may be taken before
a judge, justice or chancellor of any court of record, a justice of the
peace, notary public, mayor or chief magistrate of any municipal cor-
poration, a commissioner appointed by the governor of this state to take
depositions, or any other person authorized to administer oaths, or any
person authorized by a special commission from this state; provided, that
when a deposition is taken by an officer not having a seal, his jurat
shall be accompanied by a certificate of the clerk of the county in which
same is taken, setting forth the fact that the officer is such officer, and
that his signature is genuine. Either party may commence taking tcA-
timony by deposition after service upon the defendant. Officer taking
must not be a relative or interested in the action. Any court of record
of the state, or a judge, may grant a commission to take depositions



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 31 of 50)