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fest error, and should be construed to mean "testimony" or "evidence." Kerry v. State, 17 Tex. App. 178, 182, 50 Am. Dec. 122.

Primarily, a "deposition" is simply written testimony. It is testimony that is de posited or laid down in writing. A legal deposition, according to Bouvier, is the testimony of a witness reduced to writing, in due form of law, by virtue of the commission or other authority of a competent tribunal, or, according to the provision of some statute law, to be used on the trial of some question of fact in a court of justice. In Troy Iron & Nail Factory v. Corning (U. S.) 24 Fed. Cas. 236, it was said by Nelson, J., that it is testimony taken out of court under an authority which will entitle it to be read as evidence in court, and has no relation to oral testimony taken in court or before a master. Indianapolis Water Co. v. American Strawboard Co. (U. S.) 65 Fed. 534, 535.

The term "deposition," although some times used as synonymous with "affidavit" or "oath," in its strict and appropriate sense is limited to the written testimony of a witness given in the course of a judicial proceeding, either at law or in equity. State v. Dayton, 23 N. J. Law (3 Zab.) 54, 53 Am. Dec. 270. In jurisprudence, says Abbot, the principal use of the term is to signify the testimony of a witness when given in answer to interrogatories propounded by a person authorized for the purpose, and officially taken down in writing. The Sallie P. Linderman (U. S.) 22 Fed. 557, 558.

of depositions on the information or on the
examination. Mattingly v. Nichols, 65 Pac.
748, 133 Cal. 332.

The testimony of a witness taken by a Judge in the form of a deposition, and reduced to writing by a stenographer, but not read over to or corrected or signed by the witness or certified by the judge, does not constitute a "deposition" within the requirements of the Code. Thomas v. Black, 23 Pac. 1037, 1038, 84 Cal. 221.

An affidavit that on a certain page of a bill of exceptions a space was left for depositions, and "such depositions" were placed inside of said bill of exceptions at said point, but not otherwise fastened, will be construed to mean the original depositions, and not copies. Pennsylvania Co. v. Sears, 36 N. E. 353, 354, 136 Ind. 460.

"Deposition," as used in Code Cr. Proc. 1879, art. 774, providing that the deposition of a witness taken before an examining court or a jury of inquest, and reduced to writing and certified, may be read in evidence, authorizes the use only of depositions taken in such cases, and does not authorize the reading in evidence by the state of testimony given by a witness before such examining court. Cline v. State, 36 Tex. Cr. R. 320, 369, 36 S. W. 1099, 61 Am. St. Rep.

850.

On the taxation of costs in an equity case in the federal court, the fee of $2.50 on each deposition taken and admitted in evidence on the hearing before the court is taxable under Rev. St. § 824, providing a fee, for each deposition taken and admitted in a cause, in favor of the party recovering costs,

and it is immaterial before what officer the

At a preliminary examination for a magistrate, the justice appointed the plaintiff to report in shorthand the proceedings at the preliminary investigation, and, in an action to recover for his services and for transcribing the evidence, it was contended that the county was liable, in that the statute made it the duty of the magistrate to Under Rev. St. § 824, allowing fees for indorse in writing his order of discharge "depositions" taken, the testimony of each upon the "depositions" taken, etc., and hence witness is a deposition, especially where such depositions were necessary, and a part the testimony of each witness is taken sepof the legitimate costs of the preliminary ex-arately. Broyles v. Buck (U. S.) 37 Fed. amination; but the court held that the name 137, 138. "deposition" is used to designate the testimony taken by the magistrate when the complaint is presented to him before the issuance of the warrant, as well as the testimony of witnesses taken upon the examination of the accused after arrest, and that the order of discharge may properly be indorsed upon the former. Thus Pen. Code, § 811, provides that, when an information is laid before a magistrate, he must examine the informant and any witnesses, and take their depositions in writing. Then section 812 prescribes what the deposition as taken must set forth. The term "deposition" is also given to the testimony taken upon the examination of the accused, and section 870 speaks

deposition was taken, whether examiner,
master, or otherwise. Furguson v. Dent (U.
S.) 46 Fed. 88, 90, 91.

A deposition is a written declaration under oath, made upon notice to the adverse party. Bates' Ann. St. Ohio 1904, § 5262; Rev. St. Wyo. 1899, § 3704.

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. Code Civ. Proc. Cal. 1903, § 2004; Ann. Codes & St. Or. 1901, § 816.

A deposition is a written declaration under oath, made on notice to the adverse party, for the purpose of enabling him to attend and cross-examine, or upon written

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interrogatories. Ann. St. Ind. T. 1899, | tered or published as true. People v. Robles, 2027; Gen. St. Kan. 1901, § 4790; Rev. 49 Pac. 1042, 117 Cal. 681. Codes N. D. 1899, § 5667; Code Civ. Proc. S. D. 1903, 505; Rev. St. Okl. 1903, § 4529.

An "affidavit" is a written declaration ander oath, made without notice to the adverse party. Civ. Code Proc. § 3321. A "deposition" is a written declaration on oath, made upon notice to the adverse party, for

Affidavit.

Deposition, "In its proper technical sense, is limited to the written testimony the purpose of enabling him to attend and of a witness in the course of a judicial pro- cross-examine. Both affidavit and deposiceeding either at law or in equity." Bouv-tion are declarations under oath, and a disier. It is, however, sometimes used, both in tinction recognized by the court between common parlance and legislative enactments the two is simply for the purpose of preas synonymous with "affidavit" or "oath," serving the right of cross-examination. So and is thus defined by Webster. State v. that in a probate proceeding, where there Dayton, 23 N. J. Law (3 Zab.) 49, 54, 53 Am. is no adverse party, an affidavit will be Dec. 270. treated as a deposition. In re Liter's Estate,

The word "deposition" may be used in 48 Pac. 753, 756, 19 Mont. 474. two senses. In its restricted and technical sense it is usually limited to the written testimony of a witness given in the course of a judicial proceeding at law or in equity, but it is also a generic expression, which embraces all written evidence verified by oath, and thus includes affidavits; and, as used in the Political Code of Georgia, authorizing a commissioner of the state, residing in another state, to administer oaths and to take certified acknowledgments of depositions under commission or otherwise, the word "deposition" will be held to include affidavit, this being rendered the more proper construction owing to the fact that he is authorized by the language to certify acknowledgments of depositions not taken under a commission by the use of the words "or otherwise." Baker v. Magrath, 32 S. E. 370, 371, 106 Ga. 419.

"'Deposition' is a generic term, embracing all written evidence verified by oath, and thus includes affidavits; but in legal language a distinction is maintained in courts of law and chancery between 'depositions' and 'affidavits.' A 'deposition' is evidence given by a witness under interrogatives. oral or written, and usually written down by an official person; while an 'affidavit' is the mere voluntary act of the party making the oath, and may be, and generally is, taken without the cognizance of the one against whom it is used." Stimpson v. Brooks (U. S.) 23 Fed. Cas. 100.

An affidavit is a voluntary ex parte statement, formally reduced to writing, and sworn to or confirmed before some officer authorized by law to take it. The distinction between an "affidavit" and a "deposition" is that the former is ex parte volunThe word "deposition" includes affida- tary, and the latter is made after notice, vits, and is so used in the provision that the and is compulsory. If the witness is submaking of a deposition or certificate is deem-poenaed, sworn, and required to answer, his ed to be complete, within the provision of evidence, reduced to writing, is his "depothe chapter relating to perjury, from the sition." Crenshaw v. Miller (U. S.) 111 Fed. time when it is delivered by the accused to 450, 452; Woods v. State, 33 N. E. 901, 903, any other person with intent that it be ut-134 Ind. 35.

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