sition. 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.

438. (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.

When there is no commission naming the officer before whom the deposition will be taken in another state, then the official character of the officer must be authenticated. Baber v. Rickart, 52 Ind. 594.

439. (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.

440. (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.

If a deposition is returned to the officer for amendment of certificate and returned during the trial this will not entitle the adverse party to a continuance. Hale v. Matthews, 118 Ind. 527.

The words "stands on the docket for trial," means the day fixed by the clerk for the trial of the cause. Dare v. McNutt, 1 Ind. 148.

441. (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.

Depositions may be published during the trial no matter when filed. Mitten v. Kitt, 118 Ind. 145.

442. (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.

The officer taking a deposition can not decide legal questions. Carpenter v. Dame, 10 Ind. 125.

443. (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.

Immaterial deviations from the statutory requirements do not invalidate. Welborn v. Swain, 22 Ind. 194; Trout v. Williams, 29 Ind. 18; Ramsey v. Flannagan, 33 Ind. 305; King v. State, 15 Ind. 64; Harvey v. Osborn, 55 Ind. 535; Hay v. State, 58 Ind. 337; Payne v. West, 99 Ind. 390.

Objections appearing on the face of a deposition must be made before the trial is commenced. Graydon v. Gaddis, 20 Ind. 515; Stull v. Howard, 26 Ind. 456; Robinius v. Lister, 30 Ind. 142; Glenn v. Clore, 42 Ind. 60; Bank v. Dunn, 106 Ind. 110; McGinnis v. Gabe, 78 Ind. 457.

If the grounds of objection are not apparent on the face of the deposition the objection may be made when the deposition is offered în evidence. Hazlett v. Gambold, 15 Ind. 303.

All objections as to the manner or form of taking a deposition must be made before trial. Lingenfelser v. Simon, 49 Ind. 82; Truman v. Scott, 72 Ind. 258.

Objections as to the competency of a deposition should be made when it is offered in evidence. Myers v. Murphy, 60 Ind. 282.

If evidence may be introduced to cure the objections, a motion to suppress should be held up until it is known whether such evidence will be introduced or not. Railroad Co. v. McWhinney, 36 Ind. 436; Railway Co. v. Anthony, 43 Ind. 183.

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

Error in rulings on motions to suppress should be saved by a motion for a new trial. Railroad Co. v. Riley, 39 Ind. 568; Mercer v. Patterson, 41 Ind. 440; McMullen v. Clark, 49 Ind. 77; Bank v. Dunn, 106 Ind. 110. See Houston v. Bruner, 59 Ind. 25.

444. (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.

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 subsequent Maggart v. Freeman, 27 Ind. 531; Maxwell v. Brooks, 54 Ind. 98.

cause.

It must appear that the deposition was filed before the first suit was dismissed, and remained on file until the time of its proposed use. Whitcomb v. Stewart, 1 Ind. 208.

445. (441.) Perpetuating testimony-Notice.-310. Whenever any person 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.

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.

446. (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.

447. (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.

448. (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.

449. (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.

450. (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 exceptions in all cases on account of the incompetency of the witness or of any part of the testimony contained in the deposition.

451. (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.

Immaterial deviation from the statute in the manner of taking depositions are to be disregarded. King v. State, 15 Ind. 64; Welborn v. Swain, 22 Ind. 194; Trout v. Williams, 29 Ind. 18; Ramsey v. Flannagan, 33 Ind. 305; Harvey v. Osborn, 55 Ind. 535; Hay v. State, 58 Ind. 337; Payne v. West, 99 Ind. 390.

452. (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.

453. (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 re

quirement 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.

SEC.

ARTICLE 16.-WRITTEN EVIDENCE.

454. Sealed and unsealed writings. 455. Instruments, how executed. 456. Effect of recitals.

457. Effect of last three sections.

458. Legislative acts and judicial records authenticated-Effect.

459. Other public records authenticated -Effect.

evidence.

460. Indiana statutes, etc.,
461. Statutes of other states, etc., evidence.
462. Judgments of justices, etc., of other
states.

463. Judgments of justices in this state.
464. Certificates of notaries-public.
465. Certificate of secretary of state.
466. Copies of records, etc., in public
offices.

467. Deeds by administrators and others
-Evidence.

468. Partition records.

469. General index of record-Evidence.
470. Land-office registers, etc.
471. Land-office certificates.
472. Canal-land patents-Proviso.

[1881 S., p. 240. In force September 19, 1881.]

454. (450.) Sealed and unsealed writings.-319. There shall be no difference in evidence between sealed and unsealed writings; and every writing not sealed shall have the same force and effect that it would have if sealed. A writing under seal, except conveyances of real estate, or any interest therein, may, therefore, be changed, or altogether discharged, by a writing not under seal. An agreement in writing, without a seal, for the compromise or settlement of a debt, is as obligatory as if a seal were affixed.

Under the common law a sealed instrument could not be discharged by a parol agreement. Dickerson v. Board, 6 Ind. 128.