CHAPTER XLVII.

DEPOSITIONS AND AFFIDAVITS.

IT sometimes happens that a notary public or a justice of the peace who is not a lawyer is required to take a deposition or an affidavit. We therefore subjoin forms for this purpose.

The distinction between the two is this: A deposition is taken under the authority of a court, or by provision of some special statute, usually for the purpose of taking the testimony of some person, who, by reason of infirmity or illness, or residence at a great distance or out of the jurisdiction of the court, is unable or unwilling to attend and give evidence in open court, or who is about to depart from its jurisdiction. Depositions are usually taken for use in cases pending in court. Both parties are entitled to be represented at the taking of the deposition, and the witness is subject to cross-examination.

In some States, however, it is provided by statute that, in anticipation of possible litigation the depositions of aged or infirm persons, or of those about to leave the State, may be taken in order to perpetuate their testimony for use in subsequent litigation, in case their evidence cannot then be obtained. Notice is given to all parties in interest, who may attend and cross-examine in the same manner as though the deposition were to be used in a pending case. In all cases great care should be taken to follow strictly any instructions given in the commission under which the deposition is taken.

An affidavit, on the other hand, is a sworn statement taken ex parte, that is, without the attendance of the adverse party, or cross-examination. Affidavits are taken for various purposes, but are usually not admissible at the trial of a case as evidence of the facts therein stated. If taken in a case pending in court, they are usually used only in support of motions, or in other subsidiary proceedings.

pursuant to the annexed notice, to be read in evidence on behalf of the plaintiff (or defendant) in a certain suit now pending in the [here

state the court in which the case is pending], in the State of

in A. B. is plaintiff, and C. D. defendant.

where

Present: E. F., attorney (or counsel) for plaintiff; G. H., attorney (or counsel) for defendant.

I. J., a witness on behalf of the plaintiff, being of lawful age, and being by me first duly sworn, deposes and says, in response to questions propounded by E. F., counsel (or attorney) for the plaintiff (or defendant): 1st Question-What is your name, age, residence, and occupation?

Answer,

2d Question-Do you know the parties to this suit?

Answer,

[Continue the questions until conclusion of examination in chief, and, in writing the answers, use the identical words of the witness.]

And being cross-examined by G. H., counsel (or attorney) for defendant (or plaintiff), the said witness deposes and says:

[Write questions and answers as before.]

And being re-examined by counsel (or attorney) for the plaintiff (or defendant), the said witness further deposes and says:

[Write questions and answers as before.]

And further this deponent saith not.

(Signature of witness.)

[If there be more than one witness, continue as follows:]

And at the same time and place came K. L., another witness on behalf of the plaintiff, who, being of lawful age (etc., same as above).

No other witness appearing, the further taking of these depositions is continued until to-morrow, at the same place, and between the same hours. (Signature, etc., of official.) county of

Office of

this

in the town of
day of

19

State of

Present: E. F., attorney for plaintiff; G. H., attorney for defendant. M. N., a witness on behalf of the plaintiff, being of lawful age, and by me first duly sworn, deposes and says, in response to questions propounded by counsel for the plaintiff (or defendant):

[Write down questions and answers as in deposition of I. J.]

And further this deponent saith not.

(Signature of witness.)

[When the depositions have been taken, conclude with the following certificate:]

I,

to-wit:

a Justice of the Peace (or other official), in and for the district (town or township) county of State of do certify that the foregoing depositions of I. J., K. L., and M. N., [name all the witnesses] were duly taken by me pursuant to the annexed notice for taking depositions to be read in behalf of the plaintiff (or defendant) in the cause of now pending in the [here describe the court in which the suit is pending], at the time and place, and within the hours in the annexed notice specified. [If an adjournment was had, so state here, thus:] the taking of said depositions, not having been completed

— against

on the first day appointed, were continued from day to day at the same place and between the same hours until completed.

I further certify that after the taking of the deposition of each witness the same was read to (or by) him and subscribed by him in my presence. And I do further certify that, at the time of so taking the same, I was a Justice of the Peace (Notary Public, or Commissioner appointed by the Governor, etc., as the case may be) in and for the in the State of

-, my commission bearing date

and expiring ""

Given under my hand (and Notarial Seal, or official seal, as the case may be), this

day of

(Signature, etc., of official.)

19_.

; paid by

Cost of taking deposition, $After taking each deposition it should be read to the witness, or by him, and a memorandum should be made by the magistrate of any changes or corrections which the witness desires to make before signing. The witness should then sign the deposition in the magistrate's presence. If he refuses to sign that fact should be noted by the magistrate at the foot of the deposition and his return changed accordingly.

The questions on direct and cross-examination may be numbered separately; but in order to save confusion it is usually better to number them all consecutively as one series, giving the first cross-question the serial number following that of the last direct question, and so on.

Affidavit of A. B.

(348.)

Form for Taking Affidavits.

I, A B., having been duly sworn, do depose and say that I am years of age, and reside in

in the county of

[Here state the facts to be embodied in the affidavit.]

and State of

the city of

who sub

in the county and State aforesaid, before me, the subscriber, a Notary Public (or other magistrate), duly commissioned in and for said county, personally appeared the above named scribed the foregoing affidavit in my presence, and made solemn oath that the statements therein made by him are true [except such as are made on information and belief, and those he believes to be true]. Witness my hand and notarial seal this

day of

19

[Seal.]

Notary Public.

If the affidavit is to be used in court it should be entitled thus:
Affidavit of A. B. to be used in a suit pending in the

and E. F. as defendant, and taken on behalf of the plaintiff (or defendant) in said suit.

GLOSSARY

OF

LAW TERMS IN COMMON USE

ABANDONMENT.

A.

A surrender of rights to property, or of property, by one person to another. Used in marine insurance, when the insured, having been paid as for a total loss, abandons what is left or saved of the property to the insurers.

ABATE. Literally, to throw down. Applied principally to nuisances, and then means their prostration or removal.

ABET. One abets another to commit a crime, by encouraging, commanding, procuring, or counselling him thereto.

ABDUCTION. Forcibly taking away or detaining a man's wife or child. ABSCOND. To go out of the jurisdiction of the courts, or conceal one's self, for the purpose of avoiding their process.

ACCEPTANCE. The reception of something offered by another with the purpose of retaining it; or of an order given by another. See chapters on AGREEMENTS, SALES, and NOTES AND BILLS.

ACCESSION. The right by which one holds all of one's own property, to gether with all of that which has become united to it, naturally or artificially.

ACCESSORY. In criminal law, means one who is concerned in the perpetra

tion of an offence, before the fact, by procuring, counselling, or commanding another to commit it; or, after the fact, one who, knowing the crime to have been committed, relieves, comforts, or assists the criminal. ACCRETION. The increase of real estate by portions of soil that are added to it through the operation of natural and gradual causes.

ACCRUE. To grow from, or to be added to, as interest accrues on the principal.

ACKNOWLEDGMENT. The act of declaring an act or deed to be his by one who executed the same. There are various ways of making an acknowledgment. See chapter on DEEDS CONVEYING LAND, and forms annexed thereto.

ACT OF GOD. An accident which arises from a cause that operates without the interference of or aid from man. See chapter on CARRIAGE OF GOODS. ACTION. Literally, a doing of any thing. In law, it means a demand, made according to the rules of law, in a court of justice, of property, or a right to property, from some other person. The word "suit" is sometimes used in the same sense.

AD LITEM. Literally, for the suit. Every court has power to appoint a guardian for the suit for one who needs such assistance.

904

ADJOURNMENT. Literally, putting off to another day. Generally applied to assemblies, which either adjourn without day or finally, or else to a day then or previously determined.

ADMINISTRATOR and ADMINISTRATION. See chapter on EXECUTORS AND ADMINISTRATORS.

ADMIRALTY. A court of admiralty has a large and, for some purposes, an exclusive jurisdiction over maritime causes, civil or criminal.

ADULTERY. Sexual intercourse of a married person with a person who is not the criminal's husband or wife.

ADVANCEMENT. A gift from a parent to a child by anticipation of the whole or some part of what that child would naturally inherit on the death of the parent.

ADVERSE POSSESSION. Possession or enjoyment of land under such circumstances as indicate that the land is claimed and enjoyed as the possessor's. If such possession has been continued for twenty years, the law generally raises the presumption that it was rightful.

ADVOCATE. One who assists or makes a plea or an argument for a party to an action in court.

AFFINITY. The connection or relation caused by marriage between each of the married persons and the kindred of the other.

Affirm, AFFIRMATION. They who have conscientious scruples against taking an oath are now generally permitted to affirm, "under the pains and penalties of perjury;" the affirmation being substituted for the oath. AGENCY. See chapter on AGENCY.

ALIAS. Means, literally, otherwise, or at another time. A man is said to be named John Smith, alias Richard Roe; and if an execution is returned unsatisfied, an alias execution is issued.

ALIBI. Presence in a place different from that before described or alleged; as, when a man charged with an offence committed at a certain time and place proves an alibi; that is, that he was somewhere else at that time. ALIEN. A person of foreign birth.

ALIMONY. Legally decreed support of wife by husband after separation. ALLEGIANCE. The obligation or duty which holds a citizen or subject to his government or sovereign.

ALLUVION. The increase of earth on the shore of the sea or the bank of a river, caused by the water, acting slowly and gradually. If the increase is sudden and violent, and the land can be traced back to that from which it is torn, it is said to belong to the original owner.

AMBASSADOR. One sent abroad by some sovereign, prince, or State on public business. Public ministers are of different ranks. First, ambassador; then, minister plenipotentiary and envoy extraordinary; then, minister resident; then, chargé d'affaires.

AMBIGUITY. Literally, doubtfulness. If it be latent, that is, only discovered by evidence bearing on an instrument, it may be cured or explained by evidence; if it be patent, that is, apparent on the face of the instrument, it cannot be explained by evidence, but makes the instrument inoperative as far as the ambiguity extends.

ANCESTOR. In law, one who has preceded another in a direct line of ascent.