was intended for the court, and applicable to some particular cause therein; and the usual abbreviations or initials of office, or the Christian names of the commissioners, post-masters, magistrates, clerks, attorneys and witnesses shall be deemed sufficient. When interrogatories and answers have been returned, they may be opened by order of the court or consent of the parties, which consent shall be endorsed on the envelope, and they shall remain with the clerk, subject to the inspection of either party. (c)

SEC. 8. If any party in any suit at common law or in chancery Commission for deposition shall make oath that he or she verily believes that his or her de bene esse. claim or defence, as the case may be, or a material part thereof, depends on a single witness, the court if in term time, or the clerk in vacation, may award a commission to take the deposition of such witness de bene esse, although he or she be not about to depart the country, nor under any disability, the party in such case giving reasonable notice of the time and place of taking such deposition to the adverse party. (c)

ecuted abroad.

SEC. 9. If any will shall be produced to any court having Commission to jurisdiction in the case of such will for probate, and any wit-prove wills exness or witnesses attesting the same shall reside out of this State, it shall be lawful for such court to issue a commission or commissions annexed to such will, and directed to any notary public, Judge of a court of law, mayor or Justice of the Peace, or to such other person or persons as by the laws of the country where such witness or witnesses may be found, are duly authorized to administer an oath, empowering him or them to take and certify the attestation of said witnesses. If the person to whom such commission shall be directed shall duly certify that the witness or witnesses personally appeared and made oath or affirmation, as the case may be, that the testator signed and published the writing annexed to such commission as his or her last will and testament, and that he, she or they subscribed their names thereto in his or her presence, and at his or her request, such oath or affirmation shall have the same operation, and the will shall be recorded in like manner, as if such oath or affirmation had been made in the court whence the commission issued. (c)

Notice to non

SEC. 10. When any commission shall be obtained to take the deposition of a witness in a suit depending in any of the courts resident party. of this State, where the plaintiff or defendant in such suit doth not reside within the State, or hath not an attorney within the same to whom notice of the time and place of taking such deposition can be given, then the person obtaining such commission, having published in some newspaper printed in this State four weeks successively the time and place, when and where the witness is to be examined, and the name of the witness, together with the names of the parties to the suit in which such witness is to be examined, it shall and may be law

(c) Secs. 5, 6 and 7, Act of Nov. 21, 1828

Costs on failure

tion.

ful for any plaintiff or defendant as aforesaid to proceed to take any deposition authorized by the commission issuing from the court, agreeably to law, where the suit depends as aforesaid; and such deposition, when taken, shall be allowed to be read as evidence in the same manner and under the like restrictions as if notice had been personally served upon the opposite party. (d)

SEC. 11. If any person or persons shall give a notice to take to take deposi- deposition or depositions, and shall fail to take or cause the same to be taken, the party notified, if attending agreeably to the notice, shall be entitled to receive four cents for every mile that he shall necessarily travel in going to and returning from the place assigned to take the deposition or depositions, to be allowed by the court where the suit is depending, and for which execution may issue according to law: Provided, That the provisions in this section shall not be extended to any case where the failure to take the deposition or depositions shall arise from the non-attendance of the witness or witnesses, or any unavoidable cause; and the oath of the party shall be admissable to enable such party to obtain the benefit of this proviso. (d)

Commissioners may issue subpœna.

How served, &c.

Powers of Com

other States.

SEC. 12. It shall be lawful for commissioners (appointed to take depositions) to issue a subpoena, directed to the witness mentioned in said commission, commanding said witness to be and appear before said commisssoners at a certain time and place to be designated in said subpoena. (e)

SEC. 13. If said witness or witnesses refuse or neglect to appear before said commissioners after reasonable notice, it shall and may be lawful for said commissioners to issue an attachment for said witness or witnesses so refusing or neglecting to appear, which attachment shall be directed to the sheriff or constable, and the said officer to whom the said attachment may be directed shall have full power to arrest the person so refusing to answer and bring him, her or them before the commissioners, who shall have full power to imprison said witness until he, she or they consent to answer before said commissioners, and the witness so offending shall pay all costs that may accrue.

(e)

SEC. 14. Commissioners appointed by the courts of any of missioners of the United States or the Territories thereof to take the testimony of any person residing within the limits of this State, shall have as full and ample powers as if they were appointed by the courts of this State. (e)

9 Fla., 254.,

tion may be

taken.

SEC. 15. Where a witness whose testimony is wanted in any When deposi- civil cause pending in this State shall live more than thirty miles from the place of trial, or shall be about to go out of the State and not to return in time for the trial, or is so sick, infirm or aged as to make it probable that he will not be able to

(d) Secs. 8 and 9, Act of Nov. 21, 1828.

(e) Secs. 1, 2 and 3, Act of March 6, 1845.

attend at the trial, his deposition may be taken in the manner hereinafter provided. (f)

SEC. 16. At any time after the cause is commenced by the service of process, or after it is submitted to arbitrators or referees, either party may apply to any Justice of the Peace, who shall issue a notice to the adverse party, to appear before the said Justice or any other Justice of the Peace, at the time and place appointed for taking the deposition, and to put such interrogatories as he may think fit. (f)

At what time.

SEC. 17. The said notice may be served on the agent or at- Service of torney of the adverse party, and shall have the same effect as notice. if served on the party himself. When there are several per

sons, plaintiffs or defendants, or parties on either side in the cause, a notice served on either of them shall be sufficient. (f)

SEC. 18. The notice shall be served by delivering an attested How made. copy thereof to the person to be notified, or by leaving such copy at his place of abode, allowing in all cases not less than twenty-four hours after such notice, before the time appointed for taking the deposition; and also allowing time for his travel to the place appointed, after being notified, not less than at the rate of one day, (Lord's day excluded) for every twenty miles' travel. (f)

SEC. 19. Instead of the written notice before prescribed, the yerbal notice. notice may in all cases be given verbally by the Justice taking the deposition, or it may be wholly omitted if the adverse party or his attorney shall in writing waive the right to it. (f)

sworn and examined.

SEC. 20. The deponent shall be sworn or affirmed to testify Witness to be the truth, the whole truth, and nothing but the truth, relating to the cause for which the deposition is taken; and he shall then be examined by the Justice, and by the parties if they think fit, and his testimony shall be taken in writing. (f)

SEC. 21. The party producing the deponent shall be allowed first to examine him, upon written interrogatories, on all the points which he shall deem material; and then the adverse party may examine the deponent in like manner; after which, either party may propose such further interrogatories as the case may require. (f)

Interrogatories.

consent.

SEC. 22. All testimony to be taken out of court, to be used Testimony in any cause pending in any court in this State, shall be taken taken by on written interrogatories, a copy of which shall be first served upon the opposite party; but, by mutual consent, such interrogatories may be dispensed with, and the party who shall be served with any interrogatories, shall be required to answer the same within the time now prescribed by law. (g)

SEC. 23. The deposition shall be written by the Justice or Deposition, by by the deponent or by some disinterested person, in the pres- whom written.

(f) Secs. 1, 2, 3, 4, 5, 6 and 7, Act of (g) Sec. 4, Act of March 6, 1845. March 15, 1843.

Certificate of
Justice.

Deposition to be sealed.

Objection to witness.

5 Fla., 268.

17 Fla., 304.

Deposition may be used in sec

ond suit.

How witness summoned.

Mode of the application to perpetuate testimony of any witness.

ence and under the direction of the Justice; and it shall be carefully read to or by the deponent, and shall then be subscribed by him. (h)

SEC. 24. The Justice shall annex to the deposition a certificate of the time and manner of taking it, the person at whose request, and the cause or suit for which it was taken, and the reason for taking it; and stating also whether the adverse party attended, and, if not, stating the notice, if any, that was given to him. (h)

SEC. 25. The deposition shall be delivered by the Justice to the court or arbitrators or referees before whom the cause is pending, or shall be enclosed and sealed by him and directed to them, and shall remain sealed until opened by the said court, arbitrators or referees. (h)

SEC. 26. Every objection to the competency or credibility of the deponent, and to the propriety of any questions put to him, or of any answers made by him, may be made when the deposition is produced, in the same manner as if the witness were personally examined on the trial: Provided, That when any deposition is taken upon written interrogatories, all objections to any interrogatory shall be made before it is answered; and if the interrogatory is not withdrawn, the objection shall be noted thereon, or otherwise the objection shall not be afterwards allowed. (h)

SEC. 27. When the plaintiff in any suit shall discontinue it or become non-suit, and another suit shall afterwards be commenced for the same cause between the same parties or their respective representatives, all depositions lawfully taken for the first suit 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 suit: Provided, That the deposition shall have been duly filed in the court where the first suit is pending, and shall remain in the custody of the court from the termination of the first suit until the commencement of the second. (h)

SEC. 28. Any witness may be summoned and compelled to give his deposition, at any place within twenty miles of his place of abode, in like manner and under the same penalties as he may be summoned and compelled to attend as a witness in any court. (h)

SEC. 29. When any person shall be 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, and also the name of the witness proposed to be examined, and shall deliver the said statement to two Justices of the Peace, one of whom shall be either a Judge or Register of Probate, a Clerk of the

(7) Secs. 8, 9, 10, 11, 12 and 13, Act of March 15, 1843.

Circuit Court, a master in chancery or a counsellor at law, requesting them to take the deposition of the said witness. (i)

SEC. 30. The said Justices shall thereupon cause notice to Notice of takbe given of the time and place appointed for taking the depo- ing deposition. sition to all persons mentioned in 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. (i)

Examination

SEC. 31. The deponent shall be sworn and examined and his deposition shall be written, read and subscribed in the same of witness. manner as is prescribed respecting the other depositions before mentioned; and the Justices shall annex thereto a certificate under their hands of the time and manner of taking it, and that it was taken in perpetual remembrance of the thing; and they 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 who did attend the taking thereof. (i)

SEC. 32. 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 parties or some of them reside. (i)

To be recorded.

Certified copy

SEC. 33. If any suit shall, either at the time of taking such deposition or at any time afterwards, be pending between the to be evidence. person at whose request it was taken and the persons named in the said written statement, or any of them, who were notified as aforesaid, or any persons 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 suit in the same manner and subject to the same conditions and objections as if it had been originally taken for the said suit. (i)

SEC. 34. Any witness may be summoned and compelled to summons give his deposition in perpetual remembrance of the thing, as witness. before prescribed, in like manner and under the same penalties as are provided in this chapter respecting other depositions taken in this State. (i)

the State.

SEC. 35. Depositions to perpetuate the testimony of witnesses When witness living without the State may be taken in any other State or in is without any foreign country, upon a commission to be issued by the Circuit Court or in the manner hereinafter provided. The person who proposes to take the deposition shall apply to either of the said courts and file therein a statement like that before prescribed to be delivered to the 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

(i) Secs. 14, 15, 16, 17, 18 and 19, Act of March 15, 1843.