or, if a resident without the state, on receiving the commission mentioned in the next section, with proof of like service of publication of the notice; to take the deposition of the witness named in the order of the judge, or in the commission, or, if more than one witness is thus named, of such of them as appear before him, at the time designated, and the taking of the same may be continued from time to time. [Amendment, approved March 24, 1874; in effect July 1, 1874.

2086. The examination must be by question and answer, and if the testimony is to be taken in another state, it must be taken upon a commission to be issued by the judge allowing the examination, under the seal of the court of which he is judge, and upon interrogatories, to be settled in the same manner as in cases of depositions taken under commission in pending actions, unless the parties expectant, if known, otherwise agree. If such parties are unknown, notice of the settlement of the interrogatories shall be published in some newspaper for such time as the judge may designate. The deposition, when completed, must be carefully read to and subscribed by the witness, then certified by the officer or person taking the same, and shall then be sealed up and delivered or transmitted to the clerk of the county designated in the order of the judge allowing the examination, who shall file the same when received. The judge allowing the examination, shall file with the clerk the order for the examination, the petition on which the same was granted, with proof of service of the order and notice. [Amendment, approved March 24, 1874; in effect July 1, 1874.

2087. The petition and order, and papers filed by the judge, as provided in section 2086, or a certified copy thereof, are prima facie evidence of the facts stated therein to show compliance with the provisions of this chapter. [Amendment, approved March 24, 1874; in effect July 1, 1874.

2088. If a trial be had between the parties named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the facts which such depositions prove, or tend to prove, upon. proof of the death, or insanity of the witnesses, or that they can not be found, or are unable, by reason of age or other infirmity, to give their testimony, the depositions or copies thereof may be used by either party, subject to all legal objections; but if the parties attend at the examination, no objection to the form of an interrogatory can be made at the trial, unless the

CHAPTER II.

PROCEEDINGS TO PERPETUATE TESTIMONY.

SECTION 2083. Evidence may be perpetuated.

2084. Manner of application for order.

2085. Appointee of judge, authority of.
2086. Manner of taking the deposition.

2087. Deposition to be filed.

2088. When the evidence may be produced.
2089. Effect of the deposition.

2083. The testimony of a witness may be taken an ated as provided in this chapter.

2084. The applicant must produce to a judge of court a petition, verified by the oath of the applic 1. That the applicant expects to be a party to a court in this state, and, in such case, the names o whom he expects will be adverse parties; or,

2. That the proof of some fact is necessary title to property in which he is interested, or to riage, descent, heirship, or any other matter w after become material to establish, though no sui be anticipated, or, if anticipated, he may not to such suit; and,

3. The name of the witness to be exam residence, and a general outline of the fac proved. The judge to whom such petition make an order allowing the examination, a officer before whom the same must be tal the notice to be given, which notice, if t are known and reside in this state, must and, if unknown, such notice must be the county where the property to be aff is situated, or the judge making the or directed by him, and by publication the to be designated by the judge, for the the publication of summons. The jud his order the clerk of the county to v be returned when taken. [1m in effect immediately.

2085. The p

tions is autho

of the order

last section,

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other to the

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11 2094.

same was stated at the examination. [Amendment, approved March 24, 1874; in effect July 1, 1874.

2089. The deposition so taken and read in evidence has the same effect as the oral testimony of the witness, and no other, and every objection to the witness, or to the relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if he were examined orally at the trial.

CHAPTER III.

ADMINISTRATION OF OATHS AND AFFIRMATIONS.

SECTION 2093. Judicial and certain officers authorized to administer oaths. 2094. Form of ordinary oath to a witness.

2095. Form may be varied to suit witness' belief.

2096. Same.

2097. Any person who prefers it may declare or affirm.

2093. Every court, every judge, or clerk of any court, every justice, and every notary public, and every officer or person authorized to take testimony in any action or proceeding, or to decide upon evidence, has power to administer oaths or affirmations.

1. Manner of Administering Oath.-Penal Code, sec. 119, n. 1, ante. 2094. An oath, or affirmation, in an action or proceeding, may be administered as follows, the person who swears, or affirms, expressing his assent when addressed in the following form: "You do solemnly swear (or affirm, as the case may be), that the evidence you shall give in this issue (or matter), pending between and shall be the truth, the whole truth, and nothing but the truth, so help you God." [Amendment, approved March 24, 1874; in effect July 1, 1874.

2095. Whenever the court before which a person is offered as a witness is satisfied that he has a peculiar mode of swearing, connected with or in addition to the usual form of administration, which, in his opinion, is more solemn or obligatory, the court may, in its discretion, adopt that mode.

2096. When a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such.

2097. Any person who desires it may, at his option, instead of taking an oath, make his solemn affirmation or declaration, by assenting, when addressed in the following form: "You do solemnly affirm (or declare) that," etc., as in section 2094.

CHAPTER IV.

GENERAL PROVISIONS.

SECTION 2101. Questions of fact to be decided by the jury, and the evidence addressed to them.

2102. Questions of law addressed to the court.

2103. Questions of fact by court or referee.

2104. Moneys paid into court.

2101. All questions of fact, where the trial is by jury, other than those mentioned in the next section, are to be decided by the jury, and all evidence thereon is to be addressed to them, except when otherwise provided by this code. [Amendment, approved March 24, 1874; in effect July 1, 1874.

2102. All questions of law, including the admissibility of testimony, the facts preliminary to such admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the court, and all discussions of law addressed to it. Whenever the knowledge of the court is, by this code, made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it.

1. Questions of Law.-Penal Code, sec. 1126 and notes, ante.

2103. The provisions contained in this part of the code respecting the evidence on a trial before a jury, are equally applicable on the trial of a question of fact before a court, referee, or other officer.

2104. Whenever moneys are paid into or deposited in court, the same shall be delivered to the clerk in person, or to such of his deputies as shall be specially authorized by his appointment in writing to receive the same. He must, unless otherwise directed by law, deposit it with the county treasurer, to be held by him subject to the order of the court. The treasurer shall keep each fund distinct, and open an account with each. Such appointment shall be filed with the county treasurer, who shall exhibit it, and give to each person applying for the same a certified copy of the same. It shall be in force until a revocation in writing is filed with the county treasurer, who shall thereupon write "revoked," in ink, across the face of the appointment. [New section, approved March 24, 1874; in effect July 1, 1874.

1. Amendments.-The amendments to the Code of Civil Procedure passed at the twentieth session of the legislature, 1873-4, are taken from "An act to amend the Code of Civil Procedure," approved March 24, 1874. Amend