speak English; when introduced in Court they can be translated by a sworn interpreter.1 Where evidence is taken by a commission, and it appears by the answers that the witness does not understand English, the Court will presume, in the absence of proof to the contrary, that the commissioner understood the language of the witness.2 But if the person taking a deposition does not understand the language of the witness, nor the witness his language, an interpreter must be sworn to interpret between them; and that fact must appear by the certificate of the person taking the deposition, and cannot be supplied by his affidavit taken afterward.3 § 68. Presence of parties. It is generally required that when the deposition is taken in the State where the trial takes place, it shall be on notice, and the certificate attached must certify if such notice was given. So, where a notary public, before whom a deposition was taken, certified that the adverse party, living more than twenty miles from the place of caption, was duly notified, and did not attend, it was held that this was sufficient evidence in the first instance of the fact of such notice, open, however, to contradiction. It is not necessary to set forth in the caption that the taking commenced at the hour designated in the notice. It is sufficient if it be certified that it was taken at that hour.5 But when the deposition is taken out of the State, it is held to be improper for the party, his agent or attorney, to be present, except under consent or stipulation; and when the return stated that "H. C. G., Esq., being present on behalf of the plaintiff," the deposition should have been excluded. In many of the forms, it will be found, it is required of the officer to certify 1 Cavasos v. Gonzales, 33 Tex. 133. 2 City etc. Ins. Co. v. Carrugi, 41 Ga. 660. 8 Amory v. Fellows, 5 Mass. 219. The questions appended to a commission sent to Bremen were in English; the commissioners returned the answers in German, annexed to a German translation of the questions; the commission was objected to, on the ground that the return should have been in English, or accompanied by an English translation, but the objection was overruled. Kulitman v. Brown, 4 Rich. S. C. 479. 4 Lyon v. Ely, 24 Conn. 507. 5 Scammon v. Scammon, 33 N. H. 52. Walker v. Barron, 4 Minn. 253. as to this fact, as in Arkansas, Indiana, Kentucky, and Massachusetts. § 69. Place where taken.—When the deposition is taken on notice, the place must be definitely stated in the notice, and the return must show the deposition was taken at such place. Where a notice had been given that a deposition would be taken at the office of Squire Moore, and the caption and certificate attached showed that it was taken at the office of Enos Moore, it was held that the deposition should be suppressed, because it did not sufficiently appear that it was taken at the place named in the notice.1 But in Wisconsin, in Fisk v. Tank, it was held that a deposition is not invalidated for want of a venue or statement of the place of taking, either in its margin, or in the commissioner's certificate. But it appears that this deposition was taken out of the State, and the case agrees with the rule laid down. If a subpoena issued by a notary for a witness to appear before him and give his deposition, fails to specify the precise locality where the notary will take the deposition, the witness will not be excused for non-attendance, if he is not misled thereby.3 § 70. Powers of notaries in taking depositions.—Notaries have power, in a majority of our States, to take depositions by virtue of their office. This power clothes them with certain necessary authority, in order to properly discharge the duty committed to them. They have therefore the right to issue a subpœna for the attendance of a witness whose deposition is to be taken before them. But what further power do they possess? What can they do if the witness refuse to attend, or, attending, refuse to answer? In some places the statutes give express authority to an officer taking a deposition to enforce the attendance and answers of a witness; but even if the statutes are silent on this point, it must be a power incidental to the office with which the notary is clothed, for the time being, to enforce the attendance and the answers of a witness. Thus, in a late 1 McClintock v. Crick, 4 Iowa, 453. 3 Keisher v. Ayres, 46 Cal. 82. 212 Wis. 276. case in Kansas, the deposition of a party was to be taken before a notary public. The party attended before the notary, but refused to be examined, whereupon the notary committed him to the custody of the sheriff, as keeper of the common jail, for contempt. He was then brought up on a habeas corpus, and it was decided the committal was legal. It is to be observed that the statute in Kansas does not expressly confer this power, only as it is incidental to the authority conferred on the officer to take depositions. The same question has come before the Court on three occasions in Missouri. In Ex parte McKee,2 it was held that a notary public, being an officer authorized to take depositions, has authority to commit a witness for refusing to answer any questions other than those which it is his personal privilege to refuse to answer. But in Ex parte Mallinkrodt, it was held that a notary public has no power to commit a witness for refusing to produce books and papers under a subpoena duces tecum. I cannot but regard this decision as of very doubtful authority, in view of the previous case, and one presently to be noticed, for the distinction is purely arbitrary. In a late case in the same State, Ex parte Munford, it was decided that in a pending suit a notary public has power to enforce the attendance of witnesses to give their depositions, and can compel them by imprisonment to answer any questions not violative of personal privilege. These decisions in Missouri are based upon the express power in their statute given to officers taking depositions. But it cannot be denied that officers who have power to issue a subpoena for witnesses to give their depositions before them must have, irrespective of any statutory express power, a right to enforce obedience to their subpoena, otherwise their official duties could not be properly discharged. The provisions of the Code of Civil Procedure, in California, give power to officers taking depositions to enforce obedience to their subpoena. In Sec. 2031, it is provided that depositions in the State may be taken before a judge, or officer authorized to administer oaths; then, in Sec. 1986, it is provided that a subpoena may issue in certain cases, one of which is to require the attendance out of Court before a 1 In re Abeles, 12 Kan. 451. 218 Mo. 599. 3 20 Mo. 493. judge, justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of the State, and such subpoena is issued by the officer before whom the attendance is required. In Sec. 1991, a provision is made for punishing, as for a contempt, by the officer issuing the subpoena, disobedience to the subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required. Therefore, as notaries are empowered to take depositions, being officers authorized to administer oaths, they can exercise the power given officers in the last section. They cannot, however, exercise such power when acting under a foreign commission, for in such a case they are not authorized to issue a subpoena.1 It has been held in Indiana, and no doubt the same would be so held everywhere, that an officer taking a deposition cannot decide legal questions, as whether a witness be competent.2 § 71. Adjournments.-Usually, the notice to take the deposition of a witness states that the meeting may be adjourned from day to day, until the deposition is completed; and an adjournment other than this, except with the consent of both parties, will be unlawful. So, where a notice to take depositions recites that the taking will be commenced on a certain day, and continued from day to day thereafter until completed, an adjournment for a longer time will be unauthorized, and will subject the depositions so taken to suppression unless the opposite party appear and waive such objection. But when a deposition was begun in the presence of both parties, but too late in the day to get through, and the witness was necessarily called off the next day, and the party against whom the deposition 1 Code of Civil Proced. Sec. 2036. 2 Carpenter v. Dame, 10 Ind. 125. 8 Where notice is given to take depositions on a certain day, continuing from day to day until they are completed, if there is a continuance from day to day for several days in the taking of a deposition, it must appear upon the record what was done each day, and that there was good cause for the delay, or the deposition ought to be suppressed. Bracken v. March, 4 Mo. 74. 4 Raymond v. Williams, 21 Ind. 241. See, to the same point, Parker v. Hayes, 23 N. J. Eq. 186; King v. State, 15 Ind. 64. A commission directing commissioners to take a deposition on a certain day, and continue from day to day until completed, does not authorize them to adjourn to a day beyond the next succeeding. Harding v. Merrick, 3 Ala. 60. was to be used would not agree on a future time to finish it, and it was then announced that some other deposition would be taken on the following day, so as to preserve the right to adjourn over until the next day, when the deposition of the first witness should be finished, the deposition thus completed on the third day was held admissible in evidence.1 It is irregular, in taking depositions, to adjourn from the place where the adverse party has been served with notice to attend, to another place in the absence of such party.2 In Wixon v. Stephens, it is held that the practice of adjourning the examination of witnesses by the commissioner, to another town from that designated for the purpose, without the consent of parties, is of questionable propriety, and not to be encouraged; but when a party did not attend at the time and place designated, and, owing to the absence of one of the witnesses, the commissioner adjourned the examination to another day and another place, within the county; and on such adjourned day proceeded to take the testimony, it was held that if the party had in any way been injured by the adjournment, his remedy was to apply to the Court to suppress the depositions. The person authorized to take a deposition may adjourn the time of taking at his discretion, even though neither party ap pear at the time first appointed, provided a reasonable notice be given to the parties.* § 72. The deposition should be subscribed, or it cannot be admitted in evidence. So, where an officer taking a deposition does not certify that it was signed by the witness, it is not admissible in evidence.5 A deposition purporting to set out the answers of a witness to the interrogatories and cross-interrogatories, but not subscribed by him, accompanied by a certificate of the commissioner stating that the said witness," after having read over the answers of B, did solemnly swear that he would adopt them, but the steamboat on which he was going up the 1 Jarboe v. Colvin, 4 Bush, 70. The reason for the adjournment should be given. Kisskadden v. Grant, 1 Kan. 328. 2 Beach v. Workman, 20 N. H. 379. 317 Mich. 518. 4 Pindar v. Barlow, 31 Vt. 529. 5 Thompson v. Haile, 12 Tex. 139. |