Court may order the taking of depositions, whenever deemed necessary to determine the rights of the parties, or to expedite the trial of causes; and may, if necessary for that purpose, order a continuance until the next term. (249.)

423. When taken and used. 292. In all actions, depositions may be taken by either party, in vacation or term time, at any time after service of summons, without order of Court therefor. They may be used in the trial of all issues, in any action, in the following cases:

First. Where the witness does not reside in the county, or in a county adjoining the one in which the trial is to be held, or is absent from the State.

Second. When the deponent is so aged, infirm, or sick, as not to be able to attend the Court or other place of trial, or is dead.

Third. When the depositions have been taken by agreement of parties, or by the order of the Court trying the cause.

Fourth. When the deponent is a State or county officer, or a Judge, or a practicing physician, or attorney-at-law, and the trial is to be had in any county in which the deponent does not reside. In either of the foregoing cases, the attendance of the witness can not be enforced.

Fifth. When notice is given fixing the time of taking any deposition on a day in term time, the Court may, if in session, or the Judge thereof in vacation, on notice given by the adverse party of the time and place of hearing the motion, fix another day for such taking, and the Court, on the hearing of such motion, may fix the time for such taking, from which there shall be no appeal. (250.)

1. Depositions can not be used in a cause, unless the reasons for using them exist at the time of trial.-Stockton v. Graves, 10 Ind. 294; Hazlette. Gambold, 15 id. 303; O'Connor v. O'Connor, 27 id. 69; Haun v. Wilson, 28 id. 296; Indianapolis, etc., R. R. Co. v. Stout, 53 id. 143.

2. Neither the ex parte affidavit of a witness nor a suppressed deposition is compe. tent.- Houston v. Bruner, 59 Ind. 25.

3. Depositions are not, per se, secondary evidence.- Millner v. Eglin, 64 Ind. 197. 4. A deposition taken in another State, by an officer not authorized by our laws to take depositions, is invalid.—Thompson v. Wilson, 34 Ind. 94.

424. Deponent not obliged to leave county. 293. A witness is not obliged to attend for examination upon a deposition in any other county than that of his residence, but may consent to do so. (251.)

425. When not read-Exception. 294. No deposition shall be read in evidence on the trial of a cause, if at that time the witness is produced in Court, unless the deposition has been taken by the agreement of the parties or by the order of the Court. (252.)

426. Attendance, how enforced. 295. The officer taking the deposition shall have power to summon and compel the attendance of witnesses. In case of the refusal of a witness to attend or testify, such fact shall be reported by the officer to any Circuit or Superior Court of the county, or the Judge thereof, and such Court or Judge shall order such witness to attend and testify; and on failure or refusal to obey such order, such witness shall be dealt with as for a contempt. (253)

427. All officers to report non-attendance. 296. The provisions of the last section shall extend to all officers and commissioners authorized to take depositions in this State, to be read in the Courts of other States or countries. (254.)

428. Oath-Manner of examination. 297. The deponent shall first be sworn by the officer to testify to the truth, the whole truth, and nothing but the truth, relating to the cause or matter for which the deposition is to be taken; and he shall then be examined by the party produc ing him, and then by the adverse party, and by the officer or parties afterward, if they see cause. (255)

429. By whom written and signed. 298. The deposition shall be written down by the officer, or by the deponent or by some disinterested person, in the presence and under the direction of the officer; and after the same has been carefully read to or by the deponent, it shall be subscribed by him. (256.)

430. Certificate. 299. The officer shall annex a certificate to the deposition, stating the following facts:

First. That the deponent was sworn according to law.

Second. By whom the deposition was written; and if written by the deponent or some disinterested person, that it was written in the presence and under the direction of the officer.

Third. Whether or not the adverse party attended.

Fourth. The time and place of taking the deposition, and the hours between which the same was taken.

And the officer shall sign and attest the certificate, and seal the same, if he have a seal of office. (257.)

1. The narrative form, if unobjected to at the time of taking, is good.— Myers v. Murphy, 60 Ind. 282.

2. A statement by the officer that a party did not appear "in person or by attorney," is sufficient.- Hay State, 58 Ind. 337.

3. The notice need not name the officer, but if it do, and another take the deposi tion, it may not therefor be suppressed.- Harvey v. Osborn, 55 Ind. 535.

4. Motions to suppress, for defect in certificate, must be certain in their objections thereto. Murray v. Phillips, 59 Ind. 56.

5. The failure to certify, whether the adverse party attended, is fatal.-Thieband Sebastian, 10 Ind. 454; Madison, etc., R. R. Co. v. Whitesell, II id. 55.

431. Sealing-Inclosing - Directing - Indorsing. 300. The officer taking the deposition shall seal up the same in a sufficient paper envelope, and direct the same to the Clerk of the Court in which the action is pending, indorsing on the envelope the names of the parties and of the witnesses whose depositions are inclosed. (258.)

432. Cause of taking shown at reading. 301. When a deposition is offered to be read in evidence, it must appear to the satisfaction of the Court that the cause for taking and reading it still exists. (259.)

433. Commission only for foreign country. 302. When a deposi tion is to be taken within or without the State, but within the United States, no commission shall be necessary for taking the deposition. When taken out of the United States, the Clerk shall, upon the request of the party taking the deposition, issue a commission to the officer or commissioner designated to take the deposition. No order of Court or affidavit shall be necessary to authorize the issuing of the commission. (260.)

434. Certificate-When authenticated. 303. When the commission contains the name of the officer before whom the deposition is to be taken, his attestation, officially certifying the same, shall be sufficient; but if the commission do not specify the name of the officer, and he have no official seal, his certificate shall be authenticated by the certificate and

seal of the Clerk or Prothonotary of any Court of record of the county in which the officer exercises the duties of his office. (261.)

435. Foreign deposition, how taken-Notice. 304. When depositions are to be taken in a foreign country, they shall be taken pursuant to an order of the Court, under a commission, with such reasonable notice of the time and place of taking the same as the Court shall require; and they shall be certified and returned by the commissioner in such manner as the Court shall direct. (262.)

436. Filing-Continuance, when had. 305. Every deposition intended to be read in evidence must be filed in Court at least one day before the time at which the cause in which the deposition is to be used stands on the docket for trial; or, if filed afterward, and claimed to be used on the trial, the adverse party shall be entitled to a continuance, at the costs of the party filing the deposition, upon showing good cause by affidavit. (263.)

437. Publication, when had. 306. Depositions, after being filed, may be published by the Clerk, at the request of either party, after giving the other, his agent or attorney, reasonable notice of the time of publication; or they may be published by order of the Court on the motion of either party. (264.)

438. Objections to competency. 307. Objections to the competency of a deponent, or to the propriety of any questions proposed to him or answers given by him, may be made at the time of taking his deposition, or in Court whether made at the taking of the deposition or not. (265.)

439. Objections to validity. 308. All objections to the validity of any deposition, or its admissibility in evidence, shall be made before entering upon the trial; not afterward. But any deposition after the commencement of the trial may be suppressed, if any matter which is not disclosed in the deposition appears, which is sufficient to authorize such suppression. (266.)

1. Immaterial deviations from the statutory requirements do not invalidate.- Welborn . Swain, 22 Ind. 194; Trout. Williams, 29 id. 18; Ramsey v. Flannagan, 33 id. 305. 2. Objections must be made before the commencement of the trial.— Stull v. How. ard, 26 Ind. 456; Glenn v. Clore, 42 id. 60.

3. The officer taking need not note the reasons for an adjournment.— King v. State, 15 Ind. 64.

4. Held, That the objection that "the names of witnesses are not indorsed on the envelope," must precede publication.-Lingenfelser v. Simon, 49 Ind. 82.

440. When used in another action. 309. When an action has been dismissed, and another action has been commenced for the same cause, the depositions taken in the first action may be used in the second or any other action between the parties, or their assignees or representatives, for the same cause; but it must appear that the depositions have been duly filed in the Court where the previous cause was pending, and have remained on file from the time the action was dismissed until the time at which it was proposed to use them. (267.)

1. It is not necessary, in using depositions taken in a dismissed case, that they should be filed, or that notice should be given of the purpose to use them in a subse quent cause. Maggart v. Freeman, 27 Ind. 531; Maxwell v. Brooks, 54 id. 98.

441. Perpetuating testimony-Notice. 310. Whenever any per

son shall make affidavit before any Circuit or Superior Court, or Judge thereof, or Clerk of the Court, that such person expects to be made a party in any action thereafter to be commenced, and that the testimony of the affiant or any other person, whether residing within or out of the State, to be named in the affidavit, is material and necessary to the prosecution or defense thereof, the Court or officer before whom the affidavit is made shall order reasonable notice to be given to the party expected to be adverse to the applicant or to his attorney, that on the day and at the place in such notice to be expressed, the witness will be examined conditionally before such officer as shall be specified in the order. (268)

1. An Act of 1859 (p. 141), provides that depositions to perpetuate testimony taken and filed prior to May 6, 1853, may be used as evidence as if taken and filed since that date, saving all objections for cause.

442. Manner of taking. 311. Upon proof that the notice has been given, either by personal service, or advertisement at least three weeks successively in some newspaper published in the proper county, or the one most convenient thereto (when the person to be notified is not an inhabitant of the State), being made to the officer authorized to take the testimony, he shall proceed to take, and certify, seal up, and return the depositions according to the rules provided for other depositions in this Act. (269.)

443. Filing and keeping sealed. 312. Every affidavit and order, and every deposition, so taken and certified, shall, within thirty days after the deposition is taken, be filed in the office of the Clerk of the proper Court of the county where the subject-matter of such expected suit may be situated. The Clerk shall file said deposition, and it shall remain sealed until published by order of the Court after commencement of such expected action. (270.)

444. Publication. 313. Any deposition which has heretofore been taken and filed for the purpose of perpetuating testimony, in pursuance of any existing or former statute of this State, as well as any deposition which may hereafter be taken and filed to perpetuate testimony, may, at any time, either before or after the commencement of the action in anticipation of which such deposition may have been taken, be published by order of the Court in the office of whose Clerk the same may be filed, on the motion of any person or party interested in the preservation of the testimony; and such deposition, with all the accompanying affidavits, orders, notices, and other documents shall be directed by such Court to be entered of record in the order-book of such Court, at the cost of the party making such motion; and such record shall contain a statement or recital of the date of the filing of such deposition.

445. Record and copy-Evidence. 314. The record of any deposition recorded under the provisions of the last section, and copies of such record, duly certified, may be used as evidence whenever and wherever the original deposition might be used.

446. Deposition, when used. 315. Upon proof of the death, insanity, or absence from the State of such witness, or inability by reason of age or infirmity to attend, the deposition, or a certified copy thereof by the Clerk of the Court where the same is filed, shall be admitted as evidence in any Court in this State, in any cause between the parties named in the affidavit, or in any cause between persons claiming under either

of said parties, and shall have like effect as if the witness had been personally present, and given oral testimony therein, saving the right of exception in all cases on account of the incompetency of the witness or of any part of the testimony contained in the deposition. (271.)

447. Unimportant deviation. 316. An unimportant deviation from any direction relative to taking depositions shall not cause any deposition. to be excluded where no substantial prejudice would be done to the opposite party. (272.)

448. Adverse party, when allowed expenses. 317. When a party shall, in response to a notice to take depositions orally, attend at the time and place, by himself or attorney, and the deposition shall not be taken, he shall, upon notice and affidavit of the facts, have judgment against the party at whose instance the notice was given, for two dollars per day for each day he may attend under the notice, and six cents per mile for the distance necessarily traveled in going to and returning from the place fixed for taking such depositions, unless it shall be shown that the failure to take such depositions did not result from the negligence or fault of the party giving the notice.

449. Taking by interrogatories-Proviso. 318. The deposition may be taken upon written interrogatories as follows: The party desiring to take such deposition shall serve notice of his intention, together with a copy of the interrogatories which he intends to propound. The opposite party may file with the Clerk within five days such cross-interrogatories as he desires to propound. The Clerk shall then issue to some officer, by him to be selected, authorized to take depositions, a commission with the interrogatories, cross-interrogatories, and re-examining interrogatories annexed thereto, requiring him to cause the witness to come before him at such time and place as he may appoint, and to faithfully take his deposition, upon the questions annexed to the commission, and, thereupon, to make return to the Court of his doings under such commission without delay. The officer shall first swear or affirm the witness, that he will make a true, full, and perfect answer to the interrogatories to be propounded to him; and then he shall propound the interrogatories annexed to the commission in their order, and accurately write the answers of the witness to such. He shall then read carefully to the witness such interrogatories and his answers thereto, and correct the answers as the witness may desire; and then the witness shall sign such deposition. Neither the parties, their agents or attorneys, shall be present, nor shall they, or any of them, be informed of the nature of the evidence until the deposition is finished. The officer shall annex to the deposition his certificate, showing, specifically, a fulfillment of each requirement of this section; and shall then inclose the deposition with the commission, interrogatories, and answers securely sealed, and transmit the same, addressed to the Clerk of the Court in which the suit is pending, with the title of the cause indorsed thereon: Provided, however, If the party served with notice, as in this section provided, shall prefer to cross-examine the witness orally, he shall notify the opposite party of such election within three days after receiving notice, and, in that case, the deposition shall not be taken without notice to him of the time and place thereof, and he shall have the privilege of an oral cross-examination; and the commission and officer's certificate shall be modified accordingly.