SECTION 1.

CHAPTER XLI.

DEPUTATION.

The summons, execution and every other paper, made or issued by a justice, except a subpena, shall be filed without a blank left to be filled by another, otherwise it shall be void. Gen. Laws, 5542.

SEC. 2. Though process issued by a justice may be altered by his direction, yet a general authority by him to a constable to alter the dates of executions instead of renewing them or to fill up or alter process, is void. 10 Johns. 405.

SEC. 3. A justice may delegate his power to issue an execution on a judgment rendered, and the power need not be in writing. 3 Ala. 481.

SEC. 4. In case of the sickness, other disability or necessary absence, of a justice on a return of a summons or at the time appointed for a trial, another justice of the same township or city may, at his request, attend in his behalf, and shall thereupon become vested with the power, for the time being, of the justice before whom the summons was returnable. In that case the proper entry of the proceedings before the attending justice, subscribed by him, shall be made in the docket of the justice before whom the summons was returnable. If the case be adjourned, the justice before whom the summons was returnable may resume jurisdiction.

SEC. 5. The justice, may at the request of a party, and on being satisfied that it is expedient, specially depute any discreet person of suitable age and not interested in the action, to serve a summons or execution, with or without an order to arrest the defendant, or with or without a writ of attachment. The said justice shall be liable on his official bond for all official acts of the person so deputed. Such deputation shall be in writing on the process. Gen. Laws, 5544.

SEC. 6. The person so deputed shall have the authority of a constable in relation to the service, execution and

return, of such process, and shall be subject to the same obligations. Gen. Laws, 5545.

[For form of deputation, affidavit and order, see SUMMONS, Chap. LXXIX.] SEC. 7. At common law, a justice may authorize any person he pleases to be his officer. Breese, 144.

SEC. 8. A justice cannot delegate any part of his official power or authority to another. 9 Barb. Sup. Ct. 611.

SEC. 9. Yet it seems that he may depute another to do a specific act, without vesting in him any discretion. 9 Barb. Sup. Ct. 611.

SEC. 10. An appointment by a justice of the peace to serve process is a judicial act and cannot be done by proxy. 6 Vt. 509.

SEC. 11. A deputation, by a justice to a person to execute a legal process, must express the full name of the person deputized, or it will be void for uncertainty, and will confer no authority on any person. 11 Hamph. 71.

SEC. 12. A justice of the peace has no authority to direct his warrant to a private person, unless when it shall be necessary, and that necessity is expressed in the warrant to be so directed. 1 Mass. 488, 493.

SEC. 13. The plaintiff, who was improperly sued in trespass, on account of a levy by a deputy constable, and who paid the judgment rendered against him, cannot sue the constable on his bond for improperly appointing the deputy. The constable, like any other ministerial officer, has the right to appoint as many deputies as he pleases. The deputy is not guilty of any trespass in levying by virtue of legal process in his hands. The plaintiff paid the judgment against him for the trespass in his own wrong. 4 Cal. 188.

Who may Take.

SECTION 1. 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:

1st. When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended.

2d. When the witness resides out of the county in which his testimony is to be used.

3d. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required.

4th. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend.

Justices of the peace may issue commissions to take the depositions of witnesses out of the state, and settle interrogatories to be annexed thereto and direct the manner in which the commissions shall be returned. Pr. Act, 428, 620; Gen. Laws, 5362, 5551.

SEC. 2. Of a Party to an Action.-The testimony of a party to an action may be taken by deposition, if he resides out of the county in which his testimony is to be used, although he resides within less than thirty miles of the place of trial. Skidmore vs. Taylor, 29 Cal. 619.

SEC. 3. All the requisitions of the statute in relation to the taking of depositions must be strictly complied with, and this must appear upon the deposition to entitle it to admission. Dye vs. Bailey, 2 Cal. 383.

SEC. 4. The mode of taking depositions, pointed out by

statute is in derogation of the common law; and the officers must follow the statute strictly. 2 Cal. 383.

SEC. 5. Discretion of Court.-The decision of a motion to suppress the reading of a deposition rests in the sound discretion of the court, who must decide upon the sufficiency, or otherwise, of the grounds upon which such motion is made. Mills vs. Dunlap, 3 Cal. 94.

SEC. 6. Interpretation of.-Where a deposition is taken, ex parte, though after notice, and the witness is, therefore, not subjected to a cross examination, the language used by him will be suspiciously regarded, and only a very literal interpretation given to it. Spring vs. Hill & Carr, 6 Cal.

17.

Who May Take.

SEC. 7. Either party may have the deposition taken of a witness in this state before any judge or clerk, or any justice of the peace or notary public in this state, on serving on the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, showing that the case is one mentioned in the last section. At any time during the forty days immediately after the service of summons by publication has been completed, and at any time thereafter, when the defendant has not appeared, the notice required by this section may be served on the clerk of the court where the action is pending. Such notice shall be at least five days, and in addition, one day for every twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless for a cause shown a judge, by order, prescribe a shorter time. When a shorter time is prescribed, a copy of the order shall be served with the notice. Either party may attend such examination and put such questions, direct and cross, as may be proper. 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 judge or officer taking the deposition, inclosed in an envelop or wrapper, sealed and directed to the clerk of the court in which the action is pending or such person as the parties in writing may agree upon, and either delivered by

the judge or officer to the clerk or such person, or transmitted through the mail or by some safe private opportunity; and thereupon such deposition may be used by either . party upon the trial or other proceeding, against any party giving or receiving the notice, subject to all legal exceptions. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken by the reason of the absence or intended absence from the county of the witness or because he is too infirm to attend, proof by affidavit or oral testimony shall be made at the trial that the witness continues absent or infirm, to the best of the deponent's knowledge or belief. The deposition thus taken may also be read in case of the death of the witness. Pr. Act, 430.

SEC. 8. If a commission to take the deposition of a witness out of this state is issued, on the application of one party without the consent of the other, to a person who is not a judge or justice of the peace or a commissioner appointed by the governor of this state, and the party who does not consent, after the appointment, files cross interrogatories, and stipulates as to the manner in which the deposition shall be returned, he is estopped from saying that the commissioner was improperly appointed. Crowther vs. Rowlanson, 27 Cal. 376.

SEC. 9. It is no ground for the exclusion of a deposition that it was noticed to be taken before the county judge, but was taken before the county clerk. Williams vs. Chadbourne, 6 Cal. 559.

Notice to take Depositions.

SEC. 10. A slight error in the title of a cause, where there is no other suit pending between the parties, will not invalidate the notice. Mills vs. Dunlap, 3 Cal. 94.

SEC. 11. The decision of such motion rests in the sound discretion of the court, who must decide upon the sufficiency or otherwise of the ground upon which such motion is made. 3 Cal. 94.

SEC. 12. What to Contain.-It being objected to by plaintiff to a deposition: 1st. That the copy of the order of the judge, fixing the time for taking it, did not mention the