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ion of the witness (14 B. M. f 197), or by his presence when the deposition was
Bibb, 317) ; but the fact that a person asked the plaintiff's witness a question in
' the defendant does not prove that such person was the defendant's agent. 4
6.

\6 [630]. Requisites of notice. — The notice must be in writing,
by the party giving it, or his attorney ; must be addressed to the
n whom it is to be served, and specify the time (a) and place (6>)
rig the deposition, and the action or proceeding in which it is to
I (c) ; and must also state the name of the proposed witness, if
position be taken out of the county where the court sits, unless
ken to prove a law, custom, or usage.

The act of 1796 {M, <5r» B., 545) required "reasonable notice of the time and
taking depositions;" and notice having been given that depositions would be

the 3d day of the month, the court said: "Nor does the simple circumstance
lotice designated no particular hour for taking the depositions entitle the party

object to the reading of them on the trial. Had he attended on the 3d, and
ertheless deprived of the privilege of cross-examination, proof of that fact might

1 sufficient for rejecting the depositions : he ought to have attended on the day

2 B. M., 302.

notice that the defendant would take a deposition on the 21st of the month,
itinue from day to day until finished," authorized the taking of it on the 25th of
fi, the examining officer having adjourned from day to day. Finlay &* Coleman
e, 2 Mar., 569.

inder a notice, given in Kentucky, that a deposition would be taken in the city of
"on the 15th day of January, 1845; and » if not taken on that day, on the 16th;
ot taken on that day, on the 17th; and, if not taken on that day, on the 18th
me month ; " it was held that the party had a right to take it on the last named
igh there do not appear to have been any adjournments. Thomas v. Davis, 7
28.

under notice, given in Kentucky, that a deposition would be taken in New
n the 31st of December, 1824, and that, if not taken then, it would be taken on
Df January, 1825, the court held, with avowed doubt, that the party had a right
on the last named day. Moore v. Humphreys, 2 J.J. M., 54.
1 May's heirs v. Russell, I Mon., 223, it was held that a provisional notice to take
ion on seven days subsequent to that first named in the notice, spread over
>f near two months, and at a place over five hundred miles from the residence of
notified, can not be deemed reasonable.

according to my understanding of the decision in the last cited case (1 Mon.,
if a notice name the 1st, 2d, 3d, and 4th days of a month for taking a deposition,
d that, if anything prevent the taking of it on the first of those days, it will be
the second of them, and so on successively;" the party has no right to take it
1 day, unless it " be shown that something had happened to prevent it from
en on each of the preceding days."

"Certainly to a common intent" is sufficient in a notice of the place for taking
is (4 Mon., 182) : thus, when the parties to an action in the Jefferson Circuit
ided in Jefferson County, notice that a deposition would be taken "at the left



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EVIDENCE. [TITLE XI



l of the court-house," without naming any county, authorized the taking of it in. 4
jrson County court-house (4 A/on., 181-82) ; and notice that a deposition would
n at '* Powell & Tesdale's Tavern " authorized the taking of it at •* Powell's Tavern
ring shown that Powell and Tesdale had formerly kept the tavern (1 Mon. % 225) ; a

:e that a deposition would be taken " at the tavern of Parker in the city

:hez," authorized the taking of it at any tavern in Natchez, which was kept by
on named Parker, it not being shown that more than one tavern was kept there b]
on of that name (1 Litt. % 122); and notice that a deposition would be taken "at t
e of Esquire Benjamin Frazier, in Stewart County, Tennessee," authorized the taki
: at " the house of Benjamin F. Frazier, justice of the peace in Stewart County, T<
ee." 4 B. M. t 576.

Jut a notice that depositions will be taken in a town without mentioning a house
e therein, is insufficient. 1 Bibb, 258.

t. "If the notice offered to the party notified the means, by the use of reasonal
liry and industry, to be at the place designated at the time fixed, it will suffice :" thi
plaintiff's notice stated that he would take A's deposition on -May 1st, at her o<
»e, in Williamsburg, Virginia, if she lived there ; if not, that it would be taken

or one of the two following days at the Raligh Tavern in said place, and that otl
>sitions would be taken at the Eagle Tavern, in Richmond, Virginia, on May 4th :
proved that A had resided in Williamsburg for many years, but had died before M
and that Richmond was about sixty miles from Williamsburg ; and it was held tl
plaintiff had the right to take the other depositions, in Richmond, on May 4th.
a, 204.

c) Under the act of 1796 (/!/. <&• /?., 545), it was held that, if there were seve
>ns pending between the parties, a notice to take depositions need not specify in wl

they were to be used, because a deposition taken in any case could be used in all.
:., 578. That rule has been changed by the Code; not so far, however, as to prev<
reading of a deposition in any subsequent action between the parties. See 8 Bush, 1;

§ 567 [632]. What is reasonable time. — A notice shall be deem<
sonable that allows one day for each thirty miles which the par
[ have to travel, and one day for preparation, if the distance be le
n one hundred miles, and two days, if it be more. If the distan
eed fifty miles, and the usual mode of travel, for the whole or a p«
the distance, be by steamboat, railroad cars, or other public co
ance, the time ordinarily required by such mode of travel, with tl
s given for preparation, shall be deemed sufficient in the notice,
distance be less than thirty miles, a notice which gives to the par
jasonable opportunity to be present shall be sufficient (a).

a) Notice to a person residing two miles from Louisville, that a deposition would
n in that city the next day, was reasonable. 2 B. A/., 302.

I 568 [633]. Adjournment to anotlier time and place. — If a notice begivi
ake a deposition, and the attendance of the witness can not be procure
he place specified in the notice, owing to his infirmity or impriso
it, the taking of the deposition may be adjourned to the next da
to some other convenient place ; and a written notice of the adjour
it shall be conspicuously posted, at the place specified in the notic
>re noon of the day on which the deposition was to have been take



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MANNER OF TAKING DEPOSITIONS. 405



he Code of 1854, J 633 of which is substantially the same as g 568 of this Code,,
tid: "When a deposition is begun in the presence of both parties, but too late:
to get through, and the witness is necessarily called off the next day, and the
st whom it is to be used will not agree on a future time to finish it, and is then,
t some other deposition will be taken the following day, so as to preserve the
journ over to the next day, when the deposition of the first witness will be
e deposition should be read, and not quashed for the reason that it was not
m consecutive days." 4 BusA y 72.

[634]. Adjournment to another place. — If a notice be given to
position, but from any cause not mentioned in the last section
sition can not be taken at the place specified in the notice, an
^nt to the nearest convenient place shall be made; and a writ-
:c of the adjournment shall be conspicuously posted, at the
:cified in the notice, for one hour before the deposition is com-
it the place to which the adjournment is made.
[635]. Explanation of cause of adjournment. — I. A deposition:
rsuant to § 568 shall be accompanied by the affidavit of the
ing it or of his attorney, stating the cause of the non-attend-
he witness (a), and by the officer's certificate that notice of the
lent was posted as is required by said section,
deposition taken pursuant to § 569 shall be accompanied by
x's certificate stating the cause of the adjournment and that
ereof was posted as is required by said section.

^position of the witness, proving that he was unable to attend, is a sufficient
the fact. 1 Dttv.y 209.

[636]. Wlien party notified may require taking on interrogatories.
than three days' notice to take a deposition be required by
e party to whom the notice is given may, by notice to the
>arty or his attorney, served on the day when the first notice is
on the following day, require the deposition to be taken upon
tories.

[637]. Taking on interrogatories by consent. — Depositions may
upon interrogatories with the consent of parties who are free
ibility ; or the consent of the guardian, curator, committee, [or
] of a party who is under disability.

ed words impliedly repealed by Act of March 15, 1894.

, IV/ien court may permit or require taking on interrogatories. —
t, on motion of either party, may permit or require depositions
en upon interrogatories —

the ascertainment of a fact or the stating of an account be re-
a commisioner.



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MANNER OF TAKING DEPOSITIONS. 4Q7



[641). Subpoena for witness. — Upon filing with an officer
to take depositions a notice duly served, or a commission
rogatories to take a deposition, it shall be the duty of the
issue his subpoena requiring the witness, whose deposition is
appear, at a time and place to be named in the subpoena, for
>n.

42J. Powers and duties of officer taking deposition, — Tlie officer
Dm the deposition is taken shall decide, summarily, all objec-
lestions (a) ; or, if in doubt, shall permit the questions to be
noting the objection in the deposition. He shall have power
: insulting questions being put to a witness, and to stop a
interrogation pursued unreasonably long and for mere vex-
ielay.

the old practice it was held that objections to leading questions need not be
the examining officer ; and that a deposition taken on such interrogatories, or,
:he answers to them, can not be read. 3 Lift., 78; 3 Afon. t 413; but see 5
k and 81 A>., 13.

[643]. Writing witness' statements. — The statements of the
ill be written by him in the presence of the officer taking the
, or by the officer in the presence of the witness.
5144]. Parties not to be present. If a deposition be taken upon
>ries, neither party nor his agent or attorney shall be present
nination of the witness.

545]. How depositions to be certified. — The officer's certificate
when and where the deposition was tal^en (a) ; that the wit-
uly sworn before giving it, and that it was written and sub-
him in the officer's presence, or was written by the officer in
>f the witness and read to and subscribed by the witness in
f the officer ; and shall also state whether or not either of the
id, if either, which of them, was present in person or by
:torney during examination of the witness (b).

ier the act of 1796 (M. &* B., 545), which contained no provision as to tfie

icate, it was held that, though his certificate as to the place where the depo-

ien would have been evidence that the notice was complied with, his failure

i it was taken could be supplied by oral evidence. 3 Afar., 558.

sition certified to have been taken agreeably to the notice must be presumed

taken within the hours specified in the notice. 2 Bibb, 214.

ras held under the Code of 1854 that an officer's certificate could not be

r the deposition had been filed, without leave of court entered of record. 3

it see i 588 of this Code.

tt/v. Tony, 2 Met., 523, it was held that, if the certificate of a justice of the

•ther State, that the answers to interrogatories were written by him, can be

ust be by "clear and satisfactory evidence;" and that the opinion of an

ed solely on a comparison of hand-writings in the depositions, is inad mis-



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08 EVIDENCE. [T



ble for that purpose: and it seems clear that the act of May 17, 1866 (B. am
t. t page 548), does not authorize such comparison.

3. In I Barbour's Digest ', page 469, Gillespie v. Gillespie, 2 Bibb, 90, saidJbAnsen
Id., 86, are correctly cited as deciding that "the certificate of a magistrate,
irties consented to the taking of a deposition, is not evidence of the conse:
tose cases arose under an act of 1808 (3 Lilt., Laws, 525), which declared thi
tions may be taken in this Commonwealth before any two justices of the pea
le court, without denying, but impliedly conceding, that the 'certificate of tw
ould be evidence of such consent (thus, for instance, dispensing with proof c
eld that the certificate of a person not authorized by law to take a depositioi
ridence that he took it by consent of parties, though such consent might be
roof.

§ 583 [646] How depositions to be sent to clerk. — Exceptinj
itions taken by a guardian ad litem and by persons suing t)
auperis — which shall be delivered or sent without prepaymen
r postage — the officer, upon payment of his fees and necessary \
hall deliver the depositions to the clerk of the court in which
ustice before whom, the action is pending ; or shall send them
r private conveyance (a), in a sealed envelope, directed to sue
r justice, with an indorsement showing the style of the act
lat it contains depositions; but, if sent by private conveyar
erson by whom they are sent must make oath before the
ustice to whom they are delivered that they have not been op
im or any person in their transit. The clerk or justice shall inc
lie depositions the time and mode of their reception, and the a
" any, of the person delivering them.

The Code of 1854 required the examining officer to " seal up " depositions a
eliver them or mail them to the clerk of the court in which the action was pend
having been held that a deposition sent to the clerk by the hands of the party
was taken, though it was under seal, was properly excluded (18 B. M., 177)
iture, in 1861 (1 Sess. Acts, page 20), authorized the sending of depositions by I
f the party or his agent or attorney, provided the carrier should make oath tha
ot been opened. The provisions of this Code, as to sending depositions "1
onveyance," were intended to authorize the sending of them by the hands, not
arty or his agent or attorney, but of any person.

§ 584 [648]. Fees for subpoena, &rc. — For issuing a subpoena
ant of arrest, and for summoning or arresting a witness, the sa
hall be paid as are allowed to clerks and sheriffs for similar sen



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EXCEPTIONS TO DEPOSITIONS. 4O9

SUBDIVISION IV.

EXCEPTIONS TO DEPOSITIONS.

itions, time of filing.

exceptions to, taken how.
when,
decision on, before trial,
withdrawal of, for re-certificate,
r of error in decision upon exceptions.
is commencement of trial.

>]. Time of filing depositions. — No deposition shall be read
ess before the commencement thereof, it be filed with the
case.

ner practice, see Cravens v. Harrison, 3 Litt., 92.

:>]. Exceptions to depositions. — Exceptions to depositions
riting, specifying the grounds of objection, filed with the
case, and noted on the record.

i to depositions, that they were "taken contrary to law," are unavailing.

tions to "long depositions," that " they contain irrelevant and incom-

9 B. Jtf.,255.

ion to an entire deposition, for incompetency, must be overruled, if any
ipetent. 78 Ky., 74.

to depositions are unavailing in the Court of Appeals, even to an infant,
: who was constructively summoned, unless they were made in the court
,318; I Met., 19, 20.

tions of a party having been acted on by the court, he has no right to file
F the same character. 4 Bush, 680-81.

s taken in an action against A are not competent against B, he having
nade a defendant; and he need not, and should not, except to them ; but,
tiould offer to read them against him, he should object ; and, if the court
ction, he should except. Kerr v. Gibson, 8 Bush, 129.
the reason for excluding the evidence of a witness, by the court below,
et, if there be no statement in the bill of exceptions of what the witness
ed, or what the party offering him believed he would prove, the Court
ot interpose. Bowler v. Lane, 3 Met., 311.
ng exceptions to depositions.
> depositions must be regarded as waived, unless the record show that

on by the court below. 5 Mon., 167; 3 Met., 397; 3 Bush, 318; 4

sld that, the defendant's exceptions to depositions for want of proper
m overruled, his re-examination of the witnesses was not a waiver of his
for., 284.

ng the right to except to depositions.

fails to read a deposition taken by himself has no right to object to the

lis adversary, though the witness would have been otherwise incompetent

latter (6 Bush, 701) ; and, the defendants having cross-examined the

res and having obtained leave to retake their depositions, it was held



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4IO EVIDENCE. [1

that they had no right to except to the depositions on account of the manner
they were taken or for want of notice (5 B. M. t 518-19); and, though the d«
objection to a deposition had been sustained, it was held that the plaintiffs ha<
to object to the reading of it by the defendant; ** it would seem that they have
prejudiced, and ought not to complain that the defendant did what they want*
9 Bushy 164.

But the reading of a deposition, without objection, does not prevent an objec
a subsequent trial (1 Bibb y 612), though the objection might entitle the adverse
continuance. I J. J. M., 100.

§ 587 [65 1]. When exceptions to be taken. — 1 . No exception, ot
to the competency of the witness, or to the relevancy or com
of the testimony, shall be regarded, unless it be filed and notec
record before the commencement of the trial (a) and before oi
the first term of the court after the filing of the deposition.

2. Exceptions to the competency of the witness, or to tl
petency or relevancy of the testimony, may be made before oi
the trial (b).

(a) As to the commencement of trial, see \ 590.

[b) In an action in equity, it was held that the trial is not ended until final
is recorded, and there was no emphasis on the fact that the trial was in equity.
Cassufy, 79 A>., 392.

§ 588 [652]. Decisions on exceptions before trial — withdn
depositions for re-certificate. — The court, on the motion of eithe
shall decide upon exceptions, other than those for incompet
irrelevancy, before the commencement of the trial ; and, if
amining officer's certificate be defective, whether exceptions ha
sustained or filed or not —

1. The party for whom the deposition was taken, upon tend
the clerk or justice, having custody of the deposition, money
if any be necessary, to pay postage upon it to and from the ex
officer, may require the clerk or justice to deliver the depos
mail it, under seal, with half of the sum of money so tendered
examining officer.

2. The clerk or justice shall indorse upon the deposition the
delivering or mailing it, and the examining officer shall indorse
the time and mode of its reception.

3. The examining officer shall amend his certificate, if he a
truthfully ; and, whether he amend it or not, he shall return tl
sition to the officer who sent it to him, and such officer shall
reference to it as is required by § 583.

§589 [653]. Waiving error in decisions upon exceptions. — E
the court, in its decisions upon exceptions to depositions, an
unless excepted to.



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DEPOSITIONS TO BE USED IN OTHER STATES. 41 1



ons to decisions concerning depositions in ordinary actions, see note 3,

]. What is commencement of trial. — If the trial be by jury,
of the jury shall be deemed the commencement thereof.

SUBDIVISION v.

DEPOSITIONS TO BE USED IN OTHER STATES,
ons concerning.

]. A party desiring to take depositions in this State, to be
d proceedings in other States, may produce to a judge of
urt of the county where the witnesses reside a commission
le taking of such depositions or a notice duly served ;
shall be the duty of the judge to issue a subpoena requiring
to attend at a specified time and place for examination ;
" their failure to attend or refusal to be sworn or to testify,
>unished as is provided in § 538.

• proceedings before an examiner, justice of the peace, or
ic, depositions may be taken by such officers in this State,
1 judicial proceedings in other States ; and the officer so
^positions shall have the same powers in taking the same
he county courts now have ; but in cases of contempt and
>f punishment for the same, or a failure upon the part of

punish for contempt, then it shall be the duty of the
the motion of the witness or either party to the suit, to
writing, report his actions and the reason therefor to the

county court for the county in which the deposition is
and the court may change, modify, or vacate the order

and shall render judgment for the fine imposed by the
limself, and he shall, in accordance with the judgment ren-

to the officer what further steps shall be taken. Act
B4.]



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412 EVIDENCE. [tit

ARTICLE III.

GENERAL RULES OF EXAMINATION.

$ 592. Order in which proof is made on trial.

\ 593. Control of court over mode of interrogation.

\ 594. Direct and cross-examination.

# 595. Leading questions.

\ 596. Party can not impeach, but may contradict, his witness.

\ 597. Impeachment of witness by adverse party.

g 598. Proof of contradictory statements.

\ 599. Evidence of good character.

} 600. Witnesses, re-examination of.

§601. separation of.

§ 602. Any person present may be compelled to testify.

\ 603. Calling judge or juror as witness.

§ 604. Proof of writing by witness.

§ 59 2 [656]. Order in which proof is made on trial. — The part

begins the case must, ordinarily, exhaust his evidence before the

* begins. But the order of proof shall be regulated by the court,

to expedite the trial, and enable the tribunal to obtain a clear vi

the whole evidence.

As to the order of proof see, further, §317, subs. 3.

§ 593 [657]. Control of court over fnode of interrogation. — The
shall exercise a reasonable control over the mode of interrogati
as to make it rapid, distinct, as little annoying to the witness, «
effective for the extraction of the truth, as may be; but, subject
control, the parties may put such legal and pertinent questions a
may see fit. The court, however, may stop the production of f
evidence on a particular point, if the evidence upon it be aire
full as to preclude reasonable doubt.

§ 594 [658]. Direct and cross-examination. — The examinatioi
witness by the party producing him is the direct examinatio:
examination, upon the same matter, by the adverse party is the
examination. The direct examination must be completed befc
cross-examination begins, unless the court otherwise direct.

§ 595 [659]- Leading qtiestiotis. — A question that suggests
witness the answer which the examining party desires is a leading
tion. On the direct examination, leading questions are not all
except under special circumstances making it appear that the in
of justice require it. On cross-examination, the adverse party m
leading questions ; but, if he examine the witness on new matter*
•examination is subject to the same rules as the direct examinatioi

As to leading questions, see note to \ 579.



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GENERAL RULES OF EXAMINATION. 413

o]. Impeachment or contradiction by a party of his witness. —
'oducing a witness is not allowed to impeach his credit by
bad character (a), unless it was indispensable that the party
uce him ; but he may contradict him by other evidence,
ing that he has made statements different from his present



can no more impeach his own witnesses for what they depose on cross-

n for what they depose at his instance. 5 Dana, 422.

who reads a deposition taken by the adverse party makes the deponent his

Musiek v. Ray, 3 Met., 427.

e adoption of the Code, a party who was surprised by the testimony of his

ntradict him only by showing that the facts were otherwise than as stated

ider the Code he may contradict his witness in that mode or by showing

e statements differing from his present testimony, or in both modes. 2

x Bush, 184.

ty's witness state a fact which is unfavorable to him, and deny the ex-



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 56 of 142)