§ 28. Objections, how and when to be taken. Every objection to the competency or credibility of the deponent, and to the propriety of any question put to him, or of any answer made by him, may be made when the deposition is produced, in the same manner as if the witness was personally examined on the trial: provided, that all objections to the form of any interrogatory shall be made before it is answered, and, if the interrogatory is not withdrawn, the objection shall be noted in the deposition; otherwise the objection shall not be afterward entertained.

$29. Deposition may be used in second action, when. When the plaintiff in any action discontinues it, or it is dismissed for any cause, and another action is afterward commenced for the same cause between the same parties, or their respective representatives, all depositions lawfully taken for the first action may be used in the second, in the same manner, and subject to the same conditions and objections, as if originally taken for the second action: provided, that the deposition has been duly filed in the court where the first action was pending, and remained in the custody of the court, from the termination of the first action until the commencement of the second.

2 M. 95 (118).

§ 30. Deposition used on appeal of action, how. When an action is appealed from one court to another, all depositions lawfully taken to be used in the court below may be used in the appellate court, in the same manner, and subject to the same exceptions for informality or irregularity, as were taken to such depositions in writing in the court below.

§ 31. Witness compelled to give deposition, when. Any witness may be subpoenaed and compelled to give his deposition, at any place within twenty miles of his abode, in like manner, and under the same penalties, as he may be subpoenaed and compelled to attend as a witness in any court.

TITLE 3.

TAKING THE TESTIMONY OF WITNESSES OUT OF THIS STATE.

$32. Depositions, how taken and when used. The deposition of any witness without this state may be taken under a commission issued to any competent person in any state or country, by the court in which the cause is pending, or upon a reference as hereinafter provided; and the deposition may be used in the same manner, and subject to the same conditions and objections, as if it had been taken in this state.

1 M. 231 (297); 7 M. 50 (74).

§33. Commission may issue, in what cases. No commission shall be issued to take testimony out of this state, except in the following cases:

First. When an issue has been joined in an action in a court of record in this state, and it shall appear, on the application of either party, that any witness not residing in this state is material in the prosecution or defence of such action, and that due notice of such application was served upon the adverse party at least eight days before the application is made;

Second. When, in an action commenced in a court of record in this state, the time of answering the complaint has expired, and the defendant has not answered or demurred to the said complaint, and it appears, upon the application of the plaintiff, that the testimony of any witness not residing in this state is material and necessary to establish the facts stated in the complaint, and to enable the court to render judgment in such action.

$34. Interrogatories and cross-interrogatories, how settled. When the application is made by the plaintiff, and there has been no appearance for the defendant in the action, it may be made ex parte, and without notice; and the deposition

may be taken upon interrogatories filed by the plaintiff, and annexed to the commission. In all other cases, such depositions shall be taken under a commission, and upon written interrogatories, to be exhibited to the adverse party or his attorney, and cross-interrogatories, to be filed by him, if he sees fit: provided, that the parties may, by stipulation in writing, agree upon any other mode of taking depositions, and, when taken pursuant to such stipulations, they may be used upon the trial, with like force and effect, in all respects, as if taken upon the commission and written interrogatories as herein provided. § 35. Affidavits, etc., taken out of state to be used on motion. All oaths or affidavits taken out of the state, before any officer authorized to administer oaths, and certified by the clerk of a court of record, may be used and read upon the argument of any motion, to the same extent, and with like effect, as if taken within this state: provided, that if such affidavit is taken before a notary public, or commissioner for this state, no such certificate shall be required.

*§ 36. Depositions taken under notice-requisites of notice, etc. Whenever the testimony of any person without this state is wanted in any civil action or proceeding in any court of this state, the same may be taken by and before any officer authorized to administer an oath in the state or territory in which the testimony of such person may be taken, upon notice to the adverse party of the time and place of taking the same. Such notice shall be in writing, and shall be served as other notices in civil actions are required to be served, and shall be served so as to allow the adverse party sufficient time, by the usual route of travel, allowing one day for every one hundred miles of distance between the place of the service of the notice and the place of the taking of such testimony, and one day for preparation, exclusive of Sundays and the day of service; and the examination may, if so stated in the notice, be adjourned from day to day: provided, that the justice of the peace, or judge of the court before which, or the court commissioner of the county in which, the action is pending, may, on motion, and by order in the cause, designate the time and place for the taking of the testimony, and the time within which a copy of the order shall be served on the adverse party or his attorney: and provided further, that whenever the defendant in any action or proceeding is in default for want of an answer or other defence, such notice or order need not be served upon him. (1873, c. 61, § 1, as amended 1876, c. 68, § 1.)

*$37. Deposition, how taken, authenticated and returned. At the time and place specified in the notice or order, or within one hour thereafter, the examination shall commence. Each witness shall, before testifying, be sworn by the officer to testify the whole truth and nothing but the truth relative to the cause specified in the notice or order. The testimony shall be written by the officer. The proceeding may be adjourned from day to day until the examinations are closed. Either party may appear in person, or by an agent or attorney, and take part in the examination. The testimony of each witness, when completed, shall be carefully read over by the officer to him, whereupon he may add thereto or qualify the same as he may desire. When the deposition is completed, the witness shall sign his name, or make his mark, at the end thereof, as well as upon each piece of paper on which any portion of his testimony is written. Thereupon the officer taking such deposition shall annex thereto a copy of the notice or order, and a certificate, under his hand and official seal (if he have one), stating what office he held and exercised when taking such depositions, and that, by virtue thereof, he was then and there authorized to administer an oath, and that each witness, before testifying, was duly sworn to testify the whole truth and nothing but the truth relative to the cause specified in the notice or order, and that each of such depositions were taken pursuant to such notice or order, and who, if any one, examined for the parties respectively. Such certificate shall be prima facie evidence of

the matters therein stated, and it may be substantially in the following form: State of....

County of....

SS.

Be it known, that I took the annexed depositions pursuant to the annexed notice (or order); that I was then and there (state the title of the officer); that I exercised the power of that office in taking such deposition; that, by virtue thereof, I was then and there authorized to administer an oath; that each witness, before testifying, was duly sworn to testify the whole truth and nothing but the truth relative to the cause specified in the annexed notice (or order); that the testimony of each witness was correctly read over to him by me before he signed the same; that the examination was conducted on behalf of the plaintiff by.. .; that the examination was conducted on behalf

of the defendant by..

Witness my hand and seal......... this......... ...day of.....

A. D. 187....

Such depositions shall be returned by mail to the justice of the peace before whom the cause is pending, or, if it be pending in a probate court, to the judge thereof, or if it be pending in any other court of record, then to the clerk thereof; and upon their return, they shall be opened and subject to the inspection of either party. (Id. § 2.)

$ 38. How used on the trial-objections. Such deposition may be read in evidence at the trial of the action or proceeding; but when the same is offered in evidence, objection may be interposed to the competency of the witness, or to any question put to him, or to the whole or any part of his testimony, in like manner, upon the same grounds, and with the like effect, as if the witness was there testifying in open court: provided, that no objection to the form of any question, can be made, unless such objection was made before, and noted by the officer taking such deposition. (Id. § 3.)

*$ 39. Effect of informalities and defects. No informality, error or defect in any proceeding under this statute shall be sufficient ground for excluding the deposition, unless the party making objection thereto shall make it appear, to the satisfaction of the court, that the officer taking such deposition was not authorized to administer an oath then and there, or that such party was, by such informality, error or defect, precluded from appearing and cross-examining the witness; and every objection to the sufficiency of the notice, or to the manner of taking, or certifying, or returning such depositions, shall be deemed to have been forever waived, unless such objections are taken by motion to suppress such depositions, which motion shall be made within ten days after service of such notice in writing of the return thereof. (Id. § 4.)

*$ 40. Costs, when party giving notice fails to appear. Whenever any party shall, under the provision of this act, serve notice of the taking of the testimony of any person, and the adverse party shall, by himself or attorney, in pursuance of such notice, attend at the time and place therein named, and the party serving such notice shall fail or neglect to appear and proceed with the taking of such testimony, the justice of the peace, or judge of the court, before whom, or in which, [the] action is pending, shall allow such adverse party such sum for expenses and for attorney's fees incurred in making such attendance as he shall deem proper, which sum shall be collected in the same manner as other costs and disbursements in the action or proceeding. (1876, c. 68, § 2.)

TITLE 4.

PROCEEDINGS TO PERPETUATE THE TESTIMONY OF WITNESSES WITHIN THIS

STATE.

$41. (SEC. 36.) Testimony of witness may be perpetuated-application how made. When any person is desirous to perpetuate the testimony of any witness, he shall make a statement in writing, setting forth briefly and substantially his title, claim or interest, in or to the subject concerning which he desires to perpetuate the evidence, and the names of all other persons interested or supposed to be interested therein, their residences, if known, and if unknown it shall be so stated, and also the name of the witness proposed to be examined, and shall deliver the said statement to the judge of a court of record, requesting him to take the deposition of the said witness.

$42. (SEC. 37.) Notice to be given-publication. The said judge shall thereupon cause notice to be given of the time and place appointed for taking the deposition, to all persons mentioned in the said statement as interested in the case, which notice shall be given in the same manner as is prescribed in this chapter respecting notice upon taking a deposition in this state, to be used in any cause here pending: provided, that in all cases where the judge is satisfied that, by reason of the non-residence of any of the persons in this state, or for any other cause, it will be impossible to serve the notice as aforesaid, he may direct notice to be given by publishing the same for three successive weeks in a newspaper printed and published in the county where the applicant resides, or if there is none, then in a newspaper printed and published at the capital of the state.

§ 43. (SEC. 38.) Testimony, how taken-judge to annex certificate. The deponent shall be sworn and examined, and his deposition shall be written, read and subscribed, in the same manner as is prescribed respecting the other depositions before mentioned; and the judge shall annex thereto a certificate, under his hand, of the time and manner of taking it, and that it was taken in perpetual remembrance of the thing, and he shall also insert in the certificate the names of the persons at whose request it was taken, and of all those who were notified to attend, and of all those who did attend the taking thereof.

§ 44. (SEC. 39.) Deposition and certificate to be recorded. The deposition, with the certificate, and also the written statement of the party at whose request it was taken, shall, within ninety days after the taking thereof, be recorded in the registry of deeds in the county where the land lies, if the deposition relates to real estate; otherwise in the county where the party applying for such deposition resides.

§ 45. (SEC. 40.) Deposition may be used, when. If any action, either at the time of taking such deposition, or at any time afterward, is pending between the person at whose request it was taken, and the persons named in the written statement, or any of them, or any person claiming under either of the said parties respectively, concerning the title, claim or interest set forth in the statement, the deposition so taken, or a certified copy of it from the registry of deeds, may be used in such action, in the same manner, and subject to the same conditions and objections, as if it had been originally taken for the said action.

§ 46. (SEC. 41.) Witness may be compelled to give deposition. Any witness may be subpoenaed and compelled to give his deposition in perpetual remembrance of the thing, as before prescribed, in like manner, and under the same penalties, as are provided in this chapter respecting other depositions taken in this state.

TITLE 5.

PROCEEDINGS TO PERPETUATE THE TESTIMONY OF WITNESSES OUT OF THIS STATE.

§ 47. (SEC. 42.) Depositions to perpetuate testimony out of the state. Depositions to perpetuate the testimony of witnesses living without this state may be taken in any state, or in any foreign country, upon a commission to be issued by any court of record, in the manner hereinafter provided.

§ 48. (SEC. 43.) Proceedings in such case-statement to be filed. The person who proposes to take the deposition shall apply to the judge of any such court, and deliver to him a statement like that before prescribed to be delivered to the judge or justice of the peace upon taking such a deposition within this state; and if the subject of the proposed deposition relates to real estate within this state, the statement shall be filed in the county where the lands, or any part thereof, lies; otherwise, in the county where the applicant resides.

$ 49. (SEC. 44.) Notice to be given-service-publication. The court shall order notice of such application to be served on all the persons mentioned in such statement, and living within the state, which notice shall be served fourteen days, at least, before the time appointed for hearing the parties: provided, that if any of said parties reside out of this state, or if their residence is unknown to the applicant, the judge shall order notice to be served on them by publishing the same, for three successive weeks, in a newspaper printed and published in the cornty where the applicant resides, or if there is none, then in a newspaper printed and published at the capital of the state.

§ 50. (SEC. 45.) Judge to issue commission, when. If, upon such hearing of the parties, or of the applicant alone, should no adverse party appear, the judge is satisfied that there is sufficient cause for taking the deposition, he shall issue a commission therefor, in like manner as for taking a deposition to be used in any cause pending in the same court.

$51. (SEC. 46.) Deposition, how taken and returned. The deposition shall be taken npon written interrogatories, filed by the applicant, and cross-interrogatories filed by any party adversely interested, if he sees fit; and it shall be taken and returned substantially in the same manner as if taken to be used in any cause pending in said court.

§ 52. (SEC. 47.) Such deposition, how used, filed and recorded. All depositions to perpetuate the testimony of witnesses taken at any place without this state, according to the provisions of this chapter, may be used in like manner as if taken within this state, and shall be filed and recorded within the same time, and in the same manner.

TITLE 6.

DEPOSITIONS TAKEN IN THIS STATE TO BE USED IN COURTS OF OTHER STATES AND COUNTRIES.

§ 53. (SEO. 48.) Witness may be compelled to give deposition to be used in another state, etc. Any witness may be subpoenaed and compelled, in like manner, and under the same penalties, as are prescribed in this chapter, to give his deposition in any cause pending in a court in any state or government, which deposition may be taken before any justice of the peace in this state, or before any commissioners that may be appointed under the authority of the state or government in which the action is pending; and if the deposition is taken before such commissioners, the witness may be subpoenaed and compelled to appear before them, by process from any justice of the peace in this state.