having a seal in such foreign country. When an affidavit is taken before a judge of a court in another state or in a foreign country, the genuineness of the signature of the judge, the existence of the court, and the fact that such judge is a member thereof, shall be certified by the clerk of the court under the seal thereof. Gen. Laws, 5358, 5361, 5551.

SEC. 76. An affidavit need not be signed by the party making it. 15 Cal. 53. Courts take judicial notice of the official character of justices of the peace in their own states, and an affidavit in which the official character of the justice before whom it is taken appears, is good. 15 Cal. 57, 58.

SEC. 77. The statute giving authority "to recorders to take affidavits to be used in any court of justice in this state," comprehends the power to take and certify the jurat to an answer, which is, in form and substance, an affidavit. 13 Cal. 648.

DEPOSITIONS TAKEN IN THIS STATE.

SEC. 78. 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. Gen. Laws, 5362, 5551.

SEC. 79. 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 previous 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. Gen. Laws, 5363, 5551.

SEC. 80. 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 to 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 be also read in case of the death of the witness. Gen. Laws, 5364, 5551.

SEC. 81. When a deposition has been once taken, it may

be read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it. Gen. Laws, 5365, 5551.

SEC. 82. Justices may issue commissions to take the depositions of witnesses out of this state and settle interrogatories to be annexed thereto, and direct the manner in which the commissions shall be returned. Gen. Laws, 5551.

DEPOSITIONS TAKEN OUT OF THIS STATE.

SEC. 83. The testimony of a witness out of the 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 at any time after a question of fact has arisen therein. Gen. Laws, 5366, 5551.

SEC. 84. The deposition of a witness out of this state shall be taken upon commission issued from the court, under the seal of the court, upon an order of the judge or court or county judge, on the application of either party, upon 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 any judge or justice of the peace selected by the officer granting the commission, or to a commissioner appointed by the governor of this state to take affidavits and depositions in other states. Gen. Laws, 5367, 5551.

SEC. 85. Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled if the parties disagree as to their form, by the judge or officer granting the order for the commission, at a day fixed in the order, may be annexed to the commission, or when the parties agree to that mode the examination may be without written interrogatories. Gen. Laws, 5368, 5551.

SEC. 86. The commission shall authorize the commissioner to administer an oath to the witness and to take his deposition in answer to the interrogatories or when the examination is to be without interrogatories in respect to the question in dispute, and to certify the deposition to the court in a sealed envelop, directed to the clerk or other person designated or agreed upon and forwarded to him by mail or other usual channel of conveyance. Gen. Laws, 5369, 5551.

SEC. 87. A trial or other proceeding shall not be postponed by reason of a commission not returned, except upon evidence satisfactory to the court that the testimony of the witness is necessary and that proper diligence has been used to obtain it. Gen. Laws, 5370, 5551.

SEC. 88. An order to take testimony, by deposition, should specify the notice to be given to the adverse party. A deposition taken upon an order without such notice, where the opposite party has not had reasonable notice, ought not to be read in evidence. 5 Cal. 444.

SEC. 89. It being objected 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 notice to be given the adverse party; 2d, that no correct copy of said order was 'served; 3d, that no sufficient notice to take the deposition was ever given, the objection was overruled, "because the original order of the judge, made on affidavit, fixed the time of notice at three days, and because plaintiff's counsel acknowledged service in writing of a copy thereof March 8th, 1859, more than three days before the taking of the deposition": Held, that there was no error. The objection assigned was a matter to be considered by the court, and its discretion seems to have been properly exercised. Reasonable notice should be given to the party of the time and place of taking testimony; but what is reasonable notice depends upon the particular circumstances. 17 Cal. 43.

SEC. 90. Proof of notice to take a deposition where the written notice was defective, was held good when made by parol and conforms substantially to the statute. A slight error in the title of a cause, where there is no other suit pending between the parties, will not invalidate the notice. 3 Cal. 97.

SEC. 91. A certificate to a deposition must state that the deposition was read to the witness before signing; it should set out an actual compliance with all the requirements of the statute. 6 Cal. 561.

CHAPTER XLVIII.

EXECUTION.

SECS.

.

WHEN IT SHALL ISSUE.

WHAT TO CONTAIN.

TO WHOM DIRECTED.

IN WHAT MANNER SERVED.

1- 2 CERT FICATE OF SALE...

SECS.

49-51

PROPERTY EXEMPT FROM...... 10-32
How LEVY MADE.......
SALE UNDER-NOTICE OF..

42-48

When it shall Issue.

SECTION 1. Execution may issue at any time within five years for the enforcement of a judgment rendered in a justice's court. Pr. Act, 600.

SEC. 2. It must issue within five years after a judgment is obtained. After that time there is no judgment. 8 Cal. 512. The clerk of the county cannot issue an execution on a judgment rendered by a justice of the peace after five years shall have elapsed from the date of its rendition. 26 Cal. 156.

What to Contain.

SEC. 3. The execution shall be directed to the sheriff or constable and be subscribed by the justice by whom it was rendered or by his successor, and shall bear date the date of its delivery to the officer. It shall intelligibly refer to the judgment, by stating the names of the parties and the name of the justice before whom, and of the county and the township or city where and the time when it was rendered; the amount of judgment, if it be for money, and if less than the whole is due, the true amount due thereon. Pr. Act, 601.

To Whom Directed.

SEC. 4. The officer to whom the execution is directed shall proceed to execute it in the same manner as the sheriff is required to proceed upon executions, and either before or after the return of the execution, if the same remain unsatisfied, the judgment debtor shall be entitled to an order from the justice, requiring the judgment debtor to