Page images

§ 1867. Upon proof of personal service upon the person, who is, or is expected to be, the adverse party, of the order, copy of the affidavit, and of a notice that the examination will be taken before a judge of the supreme court, or county judge of the county wherein the witness resides or may be at a specified time and place, such judge may take the deposition of the witness conditionally, and the examination may, if necessary, be adjourned from time to time.

§1868. Every answer or declaration of the witness must be taken down, unless the parties otherwise agree. The deposition, when completed, must be carefully read to, and subscribed by, the witness, then certified by the judge, and immediately thereafter filed in the office of the clerk of the county where it was taken, together with the order for the examination of the witness, the affidavit on which the same was granted, and the affidavit of service of the affidavit, order, and notice.

§ 1869. The affidavits filed with the deposition, or a certified copy thereof, are primary evidence of the facts stated therein, to show compliance with the provisions of this chapter.

§ 1870. If a trial be had, between the persons named in the affidavit as parties actual or expectant, or their successors in interest, upon proof of the death or insanity of the witness, or of his inability to attend the trial by reason of age, sickness, or settled infirmity, [CIVIL CODE.]


the deposition, or a certified copy thereof, may be given in evidence by either party.

§ 1871. The deposition so taken and read in evidence has the same effect as the oral testimony of the witness, and no other, and every objection to the witness, or to the relevancy of any question put to him, or of any answer given by him, may be made in the same manner, as if he were examined orally at the trial.



SECTION 1872. Judicial officers authorised to administer oaths. 1873. Form of ordinary oath to a witness.

[blocks in formation]

1875, 1876. Form may be varied to suit witnesses' belief.
1877. Any person who prefers it may declare or affirm.
1878. An affirmation deemed equivalent to oath.

§ 1872. Every court, judge, justice or other officer, or person, authorised to take testimony, in any action or proceeding, or to decide upon evidence, has power to administer oaths or affirmations to witnesses.

§ 1873. An oath is usually administered as follows: the person, who swears, lays his hand upon the gospels, while the person administering the oath, thus addresses him: "You do swear that the evidence you shall give in this issue, (or matter) pending between and

shall be the truth, the whole truth, and nothing but the truth, so help you God," and thereupon the person, who swears, assents by kissing the book.

§ 1874. Any person who desires it, may swear by expressing his assent, when addressed, in the following

form: "You do swear, in the presence of the everliving God, that the evidence you shall give, &c.," as in the last section, holding up his hand or not, at his option.

§ 1875. Whenever the court, before which a person is offered as a witness, is satisfied that he has a peculiar mode of swearing, connected with, or in addition to, the usual form of administration, which, in his opinion, is more solemn or obligatory, the court may in its discretion adopt that mode.

§ 1876. When a person is sworn, who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such.

§ 1877. Any person who desires it, may, at his option, instead of taking an oath, make his solemn affirmation or declaration, by assenting, when addressed, in the following form: "You do solemnly affirm (or declare) that, &c., as in section 1873.

An important change is made by this section in respect to the administration of oaths, inasmuch as it allows a witness, in any case, to make a declaration or affirmation, instead of taking an oath. By the present law, the oath must be administered, unless the witness declares that he has conscientious scruples against taking an oath. We would not require it, if the witness merely preferred the declaration or affirmation.

That many good men doubt the lawfulness of oaths, and that more are shocked at their frequency, and the levity with which they are taken, are sufficient reasons for dispensing with them, wherever it can be done with safety. It appears to us safe to leave it optional with the witness, whether to take the

oath or make the declaration, even though he have no scruple whatever about the lawfulness of an oath.

A bad man will avoid the oath, if he choose, by feigning a scruple he does not feel; a good man does not need it as a sanction for the truth of his declarations.

1878. Whenever, by any provision of this code, an oath is required, an affirmation or declaration, as prescribed in the last section, is to be deemed equivalent thereto, and a false affirmation or declaration is to be deemed perjury, equally with a false oath.



BECTION 1879. Questions of fact to be decided by jury, and the evidence address

ed to thlm.

1880. Questions of law addressed to the court.
1881. Questions of fact by court or referees.
1882. Special statutes not affected by this code.
1883. Repealing and saving section.

§ 1879. All questions of fact, other than those mentioned in the next section, are to be decided by the jury, and all evidence thereon addressed to them, except when otherwise provided by this code.

§ 1880. All questions of law, including the admissibility of testimony, the facts preliminary to such admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the court, and all discussions of law, addressed to it. And whenever the knowledge of the court is, by this code, make evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it.

§ 1881. The provisions contained in this part of the code, respecting the evidence on a trial before a jury, are equally applicable on the trial of a question of fact before a court, referees or other officer.

§ 1882. Whenever by special statute, a certificate is expressly made evidence of a fact, or particular evidence is required, such statute remains unaffected by this code.

§ 1883. All the rules and laws of evidence, heretofore existing in this state, in any case provided for by this code, or inconsistent with it, are abrogated and repealed. But, if there be any former law, or rule of evidence, which is both consistent with this code, and not within the scope of any of its provisions, such law or rule is not abrogated by it.



§ 1884. Words used in this code in the past or present tense include the future as well as the past and present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word person includes a corporation as well as a natural person; writing includes printing or printed paper; oath includes affirmation or declaration; signature or subscription, includes mark, when the person cannot write, his name being written near it, and witnessed by a person who

« PreviousContinue »