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re State Treasurer's Settlement, 51 Neb. 116 (70 N. W. 532; 36 L. R. A. 746).

3. (1898.) Depository law (Session Laws 1891, p. 347, ch. 50) held valid. Holt County Bank v. Holt County, 53 Neb. 827 (74 N. W. 259).

Appointment and designation.

4. (1894.) Under the provisions of chapter 50, Session Laws of 1891, it is the duty of the county board to act on the propositions of each bank to become a depository of current funds of the county, as well as to approve the bond incident to that relation. State, ex rel. First Nat. Bank, v. Owen, 41 Neb. 651 (59 N. W. 886).

5. (1900.) When a county board has acted upon the propositions of different banks applying to be made depositories of county funds, and approved or rejected the bonds presented for that purpose, its powers and authority in the premises cease, and it is without power or authority to control the action of the county treasurer, and direct in which of the depositories, or in what amount, the depositing of county funds shall be had; and when an attempt is made to designate one bank as a preferred depository, such action is a nullity, and without force or effect. State, ex rel. Irrigators Bank, v. Whipple, 60 Neb. 650 (83 N. W. 921).

6. (1900.) A board of county commissioners is without authority to make one of two or more banks, designated as depositories of county funds, a preferred depository, in which county funds are to be first deposited by the county treasurer until the sum of such deposit shall reach the amount allowed under the law and depository bond of such bank. State, ex rel. Irrigators Bank, v. Whipple, 60 Neb. 650 (83 N. W. 921). Bond.

7. (1894.) The mere fact that a county treasurer has assumed to designate the bank in which he shall deposit current funds of the county, and to fix the penal bond, confers upon the bank designated no right by mandamus to compel the county board to approve the sufficiency of the bond. State, ex re'. First Nat. Bank of Stanton, v. Owen. 41 Neb. 651 (59 N. W. 886).

8. (1894.) Under the provisions of chapter 50, laws of 1891, it is the duty of the county board to act on the propositions of each bank to become county depositories, and to approve the bond incident to that relation. State, ex rel. First Nat. Bank of Stanton, v. Owen, 41 Neb. 651 (59 N. W. 886).

9. (1897.) To constitute a bank a state depository of public funds it must give a bond for the safe keeping and payment of such deposits and the accretions thereof, conditioned as required by law, and approved by the governor, secretary of state, and attorney general, or any two of them, where all were present and conferred upon the subject. In re State Treasurer's Settlement, 51 Neb. 116, (70 N. W. 532; 36 L. R. A. 746).

10. (1902.) Under the terms of the statute providing for the depositing of public funds by the county treasurer in depository banks, a depository bond of such bank is a continuing liability, which can be discharged only by the paying out of the funds deposited on account of the giving of the bond. Hall County v. Thomssen, 63 Neb. 787 (89 N. W. 393).

11. (1902.) The delivery of checks, drawn by an out-going county treasurer on county funds in a depository bank that had given the proper bond as such depository. by the incoming treasurer who had such checks certified instead of drawing out the cash, after which the bank failed, is not a redeposit of the funds as a general deposit, as will relieve the bank from liability on the depository bond. Hall County v. ThomsSEN, 63 Neb. 787 (89 N. W. 393).

11a. (1907.) The cashier of a bank is the proper officer to execute a bond on its behalf to secure a deposit of public money made therein, and the bank will be bound by such execution, in the absence of some rule or regulation adopted by the directors or stockholders requiring special authority on the part of the cashier to execute such bonds, and notice of such fact brought to the attention of the obligee therein. Johnson County v. Chamberlain Banking House, 80 Neb. 96 (113 N. W. 1055). Liability of depositary in general.

12. (1903.) Where a warrant drawn upon the general fund "For to reimburse for state sinking fund" and registered for payment, is unlawfully sold by the state treasurer, who afterwards in payment thereof draws his check on a state depository in whose hands the warrant was for collection. the latter will be protected in paying such check, unless it had actual notice of the unlawful purpose. State v. Omaha Nat. Bank, 66 Neb. 857 (93 N. W. 319).

13. (1905.) If money belonging to the state in the hands of a county treasurer is by him deposited in a bank that has been designated as a depository of county funds. and is lost by a failure of the bank, it is not the duty of the treasurer to use the money of the county to make good the loss to the state, and his action in doing so with out authority from the county board will not estop the county to recover the money from the state. Lancaster County v. State, 74 Neb. 215 (107 N. W. 388).

DEPOSITIONS.

ANALYSIS.

Right to take in general, § 1.

Right to take second deposition, § 2.

Persons authorized to take depositions, §§ 3-5.
Persons whose deposition may be taken, § 6.
Time for taking, §§ 7, 8.

Notice to take.

Certainty of place, § 9.

Reasonable time, $$ 10, 11.

Names of witnesses, § 12.
Service, §§ 13, 14.

Use of deposition on appeal, § 15.
Place of taking, §§ 16-18.

Presence of parties or counsels, § 19.

Functions of officer taking, § 20.
Examination of witness, §§ 21, 22.

On subsequent deposition, § 23.

Subscription by witness, § 24.

Punishment of witness for misbehavior, §§ 25, 26.
Requisites and sufficiency of return and certificate.
Time, place and before whom taken, §§ 27-30.
Venue, § 31.

Reading to witness, § 32.
Oath, §§ 33, 34.

Authentication, § 35.

Transcribing, §§ 36, 37.

Transmission, § 38.

Admissibility in evidence.

In general, §§ 39-42.

Right of adverse party to use, §§ 43-45.

Use of part only, §§ 46, 47.

Irrelevancy of matter, § 48.

Absence of deponent, §§ 49-52.

Exhibits attached, § 53.

Sufficiency of showing of absence, §§ 54-56.

Sufficiency of authentication, §§ 57-59.

Mistake in notice to take, § 60.

Effect of absence of revenue stamp, § 61.

Defects and objections.

Time for making and filing, §§ 62-67.
Objection to part only, time for, § 68.

Non-attendance of witness. § 69.

Failure of clerk's file mark of filing, § 70.
On appeal to district court, § 71.

Saving exceptions, § 72.

Statement of conclusions of witness, § 73.

Waiver of objection, § 74.

Sufficiency of objection, §§ 75-79.
Refiling, § 80.

CROSS-REFERENCES.

See, also, Affidavits; Discovery; Witnesses.

Continuance to take depositions, see Con

inuance, §§ 3. 4.

Affidavit for continuance for loss of, see Continuance, § 51.

Compelling taking in election contest, see Mandamus, § 178.

$ 1

Right to take in general.

1. (1895.) Provisions for the taking of testimony in one state for use in the courts of another, and the enforced attendance of witnesses for that purpose, are founded upon comity, and are, in the absence of express statutory provision to the contrary, extrajudicial as to the courts of the state where such evidence is sought. Stratton v. Dole, 45 Neb. 472 (63 N. W. 875).

Right to take second deposition.

2. (1903.) In this state the taking of depositions is regulated by statute, and there is no provision which requires leave of court to entitle a party to take a second deposition of the same witness for use in the same case. Peycke v. Shinn, 68 Neb. 343 (94 N. W. 135).

Persons authorized to take depositions.

3. (1876.) Unless authorized by special commission, the clerk of a court out of the state has no authority to take depositions. Starring v. Mason, 4 Neb. 367.

4. (1902.) Section 1750, Revised Statutes of the United States, confers on consular officers the power "to perform any notarial act which any notary public is required or authorized by law to do within the United States." Held, That such consular officer is a notary public within the meaning of our statute, and authorized to take and certify affidavits of depositions for use in the courts of the state. Browne v. Palmer, 66 Neb. 287 (92 N. W. 315).

5. (1904.) A county judge in this state has the same jurisdiction and powers in taking depositions that are conferred by law upcn a notary public, including full authority to commit a witness for refusing to be sworn or give testimony in a proper case. Olmstead v. Edson, 71 Neb. 17 (98 N. W. 415).

Persons whose depositions may be taken.

6. (1887.) A party plaintiff who is a non-resident of the county where the trial is held need not appear personally to testify in the case, but his deposition may be taken as in the case of other non-resident witnesses. Sells v. Haggard & Co., 21 Neb. 357 (32 N. W. 66).

Time for taking.

7. (1894.) Either party may commence taking depositions any time after service of summons. Kansas City, W. & N. W. R. Co. v. Conlee, 43 Neb. 121 (61 N. W. 111).

8. (1902.) In the absence of a statute or standing court rule forbidding the taking of depositions during a term time of the court in which the cause is pending, the fact that they are so taken is not ground for sup pressing them. Donovan v. Hibbler, 3 Unof 652 (92 N. W. 637).

Notice to take.

Certainty of place.

9. (1886.) In a notice to take the deposition of witnesses therein named, "at the office of M. C. Little in the town of Tonka county of La Salle and state of Illinois,” held. to contain a sufficient description of the place of taking such depositions prima facie. Britton v. Berry, 20 Neb. 325 (30 N. W. 2541. Reasonable time.

10. (1883.) A notice served on the 24:5 to take depositions on the 28th of a month, a Sunday intervening, at a place requiring two days' travel to reach by the usual route, gives one day less than the statute requir ́s Cool v. Roche, Hall & Ray, 15 Neb. 24 (17 N. W. 119).

11. (1883.) The notice to take depositions shall be served so as to allow the adverse party sufficient time by the usual route of travel to attend, and one day for preparation, exclusive of Sunday and the day of service. Cool v. Roche, Hall & Roy, 15 Neb. 24 (17 N. W. 119).

Names of witnesses.

12. (1896.) Under our statute requiring a notice to take depositions to "specify the names of witnesses to be examined," the deposition of "G. A. Hollem" cannot be take under a notice specifying the name of "Gus Hahn" or "Gus Halin," such names not be ing idem sonans. Miller v. Frey, 49 Neb. 472 (68 N. W. 630).

Service.

13. (1896.) Section 378, code of civil pro cecure, requires notice of the taking of dep ositions (unless taken under a special com mission) to be served upon the adverse party, his agent or attorney of record, or left at his usual place of residence. 4 son, T. & S. F. R. Co. v. Meek, 49 Neb. 25 (68 N. W. 509).

14. (1896.) Service of notice to take dep ositions upon a station agent, who is not the attorney of record of the adverse party. a railroad company, whose employment in nowise relates to the particular controversy, and who is without authority to accept or waive service in its behalf in any suit or pro

ceeding to which it may be a party, does not satisfy the requirement of the statute. Atchison, T. & S. F. R. Co. v. Meek, 49 Neb. 295 (68 N. W. 509).

Use of deposition on appeal.

15. (1896.) Depositions taken in a case pending before a justice and by stipulation used in said case and another pending before said justice, may be used on the trial of both cases in the appellate court, the stipulation in the meantime not having been set aside. Keens v. Robertson, 46 Neb. 837 (65 N. W. 897).

Place of taking.

16. (1878.) Whether it is proper to take depositions in the office of one of the parties or of his attorney, or before an officer who is also the clerk or student of such party or attorney, quare. Payne v. Briggs, 8 Neb. 75. 17. (1887.) The fact that a notary before whom a deposition is taken has his office in a room occupied by the attorneys who represented the party taking the deposition, is not of itself sufficient to warrant the exclusion of the deposition when offered to be read upon the trial. The practice of taking depositions in the office of an attorney interested in the cause is objectionable, yet there is no law to prohibit it. Singer Mfg Co. v. McAllister Bros., 22 Neb. 359 (35 N. W. 181).

18. (1906.) When depositions are to be taken in a large city, designation of the place by giving the name of the building or block in which the same are to be taken is sufficient without giving the street number. Sheibley v. Fales, 75 Neb. 823 (106 N. W. 1032).

Presence of parties or counsels.

19. (1888.) Where depositions of certain witnesses on behalf of the defendant in a criminal case are taken by a commission appointed by a judge of the district court, such judge has the power under section 460 of the criminal code to prescribe the manner of taking such depositions, the usual mode being by interrogatories and crossinterrogatories, but this will not prevent the attorney of either or both parties from appearing and further examining or crossexamining the witnesses. Gandy v. State, 24 Neb. 716 (40 N. W. 302).

Functions of officer taking.

20. (1906.) In the taking of depositions notaries public are not exercising judicial functions, and do not constitute a law court.

Their powers are derived solely from the statute. In re Butler, 76 Neb. 267 (107 N. W. 572.

Examination of witness.

21. (1902.) An answer of a witness in a deposition is not to be stricken out because in answer to a proper question he gives the cffect of a conversation, instead of the very terms thereof. If the other party desires to know what transpired in more detail, he should cross-examine. Bowman v. Wright, 65 Neb. 661 (91 N. W. 580).

22. (1904.) Where the testimony of a person having a direct legal interest in the result of an action, where the adverse party is a representative of a deceased person is taken by deposition, and his testimony as to transactions with the deceased is objected to upon that ground, the adverse party may cross-examine. By so doing he does not waive his objections to the competency of the witness, but may urge the same at the trial. If the evidence in chief is admitted at the trial the cross-examination should also be admitted; but, if the evidence in chief is excluded upon the objections of defendant as to competency, the cross-examination should also be excluded upon the defendant's objection, and the plaintiff is not entitled to use it to establish his case. Bentley v. Estate of Bentley, 72 Neb. 803 (101 N. W. 976).

On subsequent deposition.

23. (1895.) Where a deposition was wrongfully transmitted and never filed a subsequent deposition of the same witness taken on proper notice before the same notary in the same case will not be quashed on the ground that the notary failed to propound the cross-interrogatories originally filed. City of Chadron v. Glover, 43 Neb. 732 (62 N. W. 62).

Subscription by witness.

24. (1886.) Depositions with the names of the witnesses respectively attached thereto, with a cross between the Christian and surname, and the word "his" written above and the word "mark" written below the cross, and followed by the words, "subscribed and sworn to before me and in my presence. M. C. Little, Notary Public," is a sufficient compliance with the statute requiring depositions to be "subscribed by the witness." Britton v. Berry, 20 Neb. 325 (30 N. W. 254). Punishment of witness for misbehavior.

25. (1887.) A notary public has power to commit for contempt a witness who re

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