« AnteriorContinuar »
MODE OF TAKING TESTIMONY OF WITNESSES.
The testimony of witnesses is taken in three modes, viz:
An affidavit is a written declaration, under oath, made without notice to the adverse party.
A deposition is a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine.
An oral examination is an examination in presence of the jury or tribunal which is to decide the fact, or act upon it; the testimony being heard by the jury or tribunal from the lips of the witness.
Depositions must be taken in the form of question and answer, and the words of the witness must be written down, unless the parties agree to a different mode.
Affidavits are used to verify pleadings, or to prove service of papers, and such like.
Testimony of witnesses out of this State may be taken by deposition, at any time after service of summons, or the appearance of the defendant.
Testimony of witnesses in this State may be taken by deposition, in any action, at any time after the service of the summons, or the appearance of the defendant, in the following cases :
1. When the witness is a party to the action or proceeding, or an officer, or member of a corporation which is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended.
2. When the witness resides out of the county in which the testimony is to be used.
3. When a witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required.
4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend.
5. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required.
6. When the witness is the only one who can establish facts, or a fact material to the issue; provided, that the deposition of such witness shall not be used if his presence can be procured at the time of the trial of the cause.
The deposition of a witness out of this State may be taken upon commission issued from the Court, under the seal of the Court, upon an order of the Court, or a Judge thereof, on the application of either party, upon five days previous notice to the other. If issued to any place within the United States, it may be directed to a person agreed upon by the parties, or, if they do not agree, to any Judge or Justice of the Peace, or Commissioner, selected by the Court or Judge issuing it. If issued to any country out of the United States, it may be directed to a Minister, Embassador, Consul, Vice-Consul, or Consular Agent of the United States in such country, or to any person agreed upon by the parties.
The deposition of a witness in this State may be taken by either party before a Judge, or officer authorized to administer oaths, on serving upon the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, showing that it is a case wherein deposition may be used. Such notice must be at least five days, adding also 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, prescribes a shorter time. When a shorter time is prescribed, a copy of the order must be served with the notice.
JUDICIAL RECORDS, HOW PROVED.
A judicial record is the record or official entry of the proceedings in a Court of Justice, or of the official act of a judicial officer, in an action or special proceeding.
A judicial record of this State, or of the United States, may be proved by the production of the original, or of a copy thereof, certified by the Clerk or other person having the legal custody thereof. That of a sister State may be proved by the attestation of the Clerk and the seal of the Court annexed, if there be a Clerk and seal, together with a certificate of the chief Judge or presiding Magistrate, that the attestation is in due form.
A judicial record of a foreign country may be proved by the attestation of the Clerk, with the seal of the Court annexed, if there be a Clerk and seal, or of the legal keeper of the record, with the seal of his office annexed, if there be a seal, together with a certificate of the chief Judge or presiding Magistrate, that the person making the attestation is the Clerk of the Court or the legal keeper of the record ; and in either case, that the signature of such person is genuine, and that the attestation is in due form. The signature of the chief Justice or presiding Magistrate must be authenticated by the certificate of the Minister or Embassador, or a Consul, ViceConsul, or Consular Agent of the United States in such foreign country.
A copy of the judicial record of a foreign country is also admissible in evidence, upon proof--
1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it;
2. That such original was in the custody of the Clerk of the Court, or other legal keeper of the same; and,
3. That the copy is duly attested by a seal, which is proved to be the seal of the Court where the record remains, if it be the record of a Court; or if there be no such seal, or if it be not a record of a Court, by the signature of the legal keeper of the original.
The proof or acknowledgment of an instrument may be made at any place within this State, before a Justice or Clerk of the Supreme Court, or Judge of a Superior Court.
The proof or acknowledgment of an instrument may be made in this State within the city, city and county, county, or district for which the officer was elected or appointed, before either
1. A Clerk of a Court of Record; or,
The proof or acknowledgment of an instrument may be made without this State, but within the United States, and within the jurisdiction of the officer, before either
1. A Justice, Judge, or Clerk of any Court of Record of the United States; or,
2. A Justice, Judge, or Clerk of any Court of Record of any State; or,
3. A Commissioner appointed by the Governor of this State for that purpose ; or,
4. A Notary Public; or,
5. Any other officer of the State where the acknowledgment is made, authorized by its laws, to take such proof or acknowledgment.
A proof or acknowledgment of an instrument may be made without the United States, before either :
1. A Minister, Commissioner, or Charge d'Affaires of the United States, resident and accredited in the country where the proof or acknowledgment is made; or,
2. A Consul, Vice-Consul, or Consular Agent of the United States, resident in the country where the proof or acknowledgment is made; or,
3. A Judge of a Court of Record of the county where the proof or acknowledgment is made; or,
4. Commissioners appointed for such purposes by the Governor of the State, pursuant to special statutes; or,
5. A Notary Public.
If any of the above-named officers are authorized by law to appoint a deputy, the acknowledgment or proof may be taken by such deputy in the name of his principal.
The acknowledgment of an instrument must not be taken, unless the officer taking it knows, or has satisfactory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument; or if executed by a corporation, that the person making such acknowledgment is the President or Secretary of such corporation.
The acknowledgment of a married woman to an instrument purporting to be executed by her must not be taken, unless she is made acquainted by the officer with the contents of the instrument, on an examination without the hearing of her husband ; nor certified, unless she thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution.
GENERAL FORM OF CERTIFICATE.
COUNTY OFOn this -day of
in the year— before me, [here insert the name and quality of the officer) personally appeared