notice to take deposition of witness in Georgia on one of three successive specified days is sufficient: Harris v. Peterson, 4-358.

Notice must specify in what house deposition is to be taken: McNaughton v. Lester, 2-423-and it must be taken at house specified, Alston v. Taylor, 2-381-and where slight inaccuracy in description of house, it will be sufficient if it can be identified, Pursell v. Long. 52-102.

Notice to a particular agent is not sufficient: Lindsey v. Lee, 12-464, Where time not definitely stated notice is sufficient: Bedell v. State Bank, 12-483.

SERVICE OF NOTICE. Town constable can not serve notice in action pending in superior court: Cullen v. Absher, 119-441. Where several defendants in criminal action not necessary to notify each of the others when one wishes deposition for use on his behalf: State v. Finley, 118-1161. For method of computing time of service of notice, see Beasley v. Downey, 32-284. Depositions taken by one party and filed in court, they may be read by other party without proof of notice, and on second trial they may be read by party who took same without proof of notice: Collier v. Jeffries, 3-400.

Notice by advertisement, party being a nonresident and his attorney having died, held good in Maxwell v. Holland, 2-302.

THE TAKING OF THE DEPOSITION. Not error to take deposition in place of business of one of parties if such place named in notice and no suggestion that other party suffered any prejudice thereby: Bank v. Carr, 130-479. Deposition will be rejected where written down by attorney of party taking deposition: Mosely v. Mosely, 1-631. Interrogatories need not be in writing: Bank v. Bank of Asheville, 116-815-and answers need not be inserted after each interrogatory, where both interrogatories and answers are above the signature of commissioner: Street v. Andrews. 115-417. Name of commissioner should be inserted, inferred from Womack v. Gross, 135-378. Duty of witness to answer proper questions just as he would before judge or clerk: Fertilizer Co. v. Taylor, 112-146. Deposition unsigned by witness may be read in evidence: Rutherford v. Nelson, 2-105; Murphy v. Work, 2-105. Adjournments by commissioner must be from day to day: Rutledge v. Read, 3-242. That witness was sworn only to the truth of the deposition does not render it inadmissible: Welborn v. Younger, 10-205.

THE RETURN OF THE DEPOSITION. Deposition must be sealed up by commissioner: Ward v. Ely, 12-372. Deposition certified to have been taken on day and in county in another state, as specified in notice, but without stating particular place, not admissible in evidence: English v. Camp, 2-358. Deposition must show names of parties to action either in caption or body of it: Murray v. Marsh, 3-290. One commissioner can not amend return made by himself and another: Collier v. Jeffries, 3-400.

OPENING THE DEPOSITION. Provisions of section allowing clerk to pass upon depositions are only applicable to depositions of competent witnesses: Sehorn v. Williams, 51-575-and where clerk passed upon and allowed one to be read which was taken out of county, under commission without seal, court may disregard such action, Ibid.

Custom, when opening deposition, to reserve the right to file exceptions

as to its regularity, disapproved of in Ivey v. Cotton Mills, 143-197. Objection that commissioner related to one of parties must be made at time of opening before clerk: Kerr v. Hicks, 131-90. Party offering to read deposition as evidence must prove that he has given notice of opening of deposition before clerk as prescribed by section or show facts that would amount to waiver by opposite party of statutory requirement: Berry v. Hall, 105-154. Where it appeared that no notice was given adverse party of taking deposition and that same had not been passed upon by clerk, objection to its reception might be taken on trial of action: Bryan v. Jeffreys, 104-242. For objections to deposition which must be taken before trial, see sections 1647 and 1648.

Section merely referred to in Stern v. Herren, 101-518; Carroll v. Hodges, 98-420; Branton v. O'Briant, 93-99; Hill v. Bell, 61-122.

1653. How taken in hearings before municipal authorities. Any board of aldermen, board of town or county commissioners or any person interested in any proceeding, investigation, hearing or trial before such board, may take the depositions of all persons whose evidence may be desired for use in said proceeding, investigation, hearing or trial; and to do so, the chairman of such board or such person may apply in person or by attorney to the superior court. clerk of that county in which such proceeding, investigation, hearing or trial is pending for a commission to take the same, and said clerk, upon such application, shall issue such commission; and the notice and proceedings upon the taking of said depositions shall be the same as provided for in civil actions; and if the person upon whom the notice of the taking of such deposition is to be served is absent from or can not after due diligence be found within this state, but can be found within the county in which the deposition is to be taken, then, and in that case, said notice shall be personally served on such person by the commissioner appointed to take such deposition; and when any such deposition is returned to the clerk it shall be opened and passed upon by him and delivered to such board, and the reading and using of such deposition shall conform to the rules of the superior court.

1889, c. 151.

1654. In quo warranto proceedings, how taken. In all cases now pending or hereafter to be brought in any county of this state for the purpose of trying the title to the office of clerk of the superior court, register of deeds, county treasurer or sheriff of any county, it shall be competent and lawful to take the deposition of witnesses before a commissioner or commissioners to be appointed by the judge of the district wherein the case is to be tried, or the judge holding the court of said district, or the clerk of the court wherein the case is pending, under the same rules as to time of notice and as to the manner of taking and filing the same as is now provided by law for the taking of depositions in other cases; and such depo

sitions, when so taken, shall be competent to be read on the trial of such action, without regard to the place of residence of such witness or distance of residence from said place of trial: Provided, that the provisions of this section shall not be construed to prevent the oral examination of such witnesses by either party on the trial as they may summon in their behalf.

1889, c. 428.

1655. Taken in the state, action in another state. In addition to the other remedies prescribed by law, a party to an action, suit or special proceeding, civil or criminal, pending in a court without the state, either in the United States or any of the possessions thereof, or any foreign country, may obtain by the proceedings prescribed by this section, the testimony of a witness and in connection therewith the production of the books and papers within the state to be used in the action, suit or special proceedings. Where a commission to take testimony within the state has been issued from the court in which the action, suit or special proceeding is pending, or where a notice has been given, or any other proceeding has been taken for the purpose of taking the testimony within the state pursuant to the laws of the state or country wherein the court is located or pursuant to the laws of the United States or any of the possessions thereof, if it is a court of the United States, any justice of the supreme court or judge of the superior court shall, in a proper case, on the presentation of a verified petition, issue a subpoena to the witness, commanding him to appear before the commissioner named in the commission, or before a commissioner within the state, for the state, territory or foreign country in which the notice was given or the proceeding taken, or before the officer designated in the commission, notice or other paper by his title or office, at a time and place specified in the subpoena, to testify in the action, suit or special proceeding. If the witness shall fail to obey the subpoena, or refuse to have an oath administered, or to testify or to produce a book or paper pursuant to a subpoena, or to subscribe his deposition, the justice or judge issuing the subpoena shall, if it is determined that a contempt has been committed, prescribe punishment as in case of a recalcitrant witness. The petition prescribed by this section must state generally the nature of the action or proceeding in which the testimony is sought to be taken, and that the testimony of the witness is material to the issue presented in such action or proceeding, and shall set forth the substance of or have annexed thereto a copy of the commission, order, notice, consent or other authority under which the deposition is taken. In case of an application for a subpoena to compel the production of books or papers, the petition shall specify the particular books or papers, the produc

tion of which is sought, and show that such books or papers are in the possession of or under control of the witness and are material upon the issues presented in the action or special proceeding in which the deposition of the witness is sought to be taken. Unless the justice or judge is satisfied that the application is made in good faith to obtain testimony within the provisions of this section, he shall deny the application. Where the subpoena directs the production of books or papers, it shall specify the particular books or papers to be produced, and shall specify whether the witness is required to deliver sworn copies of such books or papers to the commissioner or to produce the original thereof for inspection, but said books and original papers shall not be taken from the witness. This subpoena must be served upon the witness at least two days, or, in case of a subpoena requiring the production of books or papers, at least five days before the day on which the witness shall be commanded to appear. A party to an action or proceeding in which a deposition is sought to be taken, or a witness subpoenaed to attend and give his testimony, may apply to the court issuing said subpoena to vacate or modify such subpoena. Upon proof by affidavit that a person to whom a subpoena was issued has failed or refused to obey such subpoena, to be duly sworn or affirmed, to testify or answer a question or questions propounded to him, to produce a book or paper which he has been subpoenaed to produce, or to subscribe to his deposition when correctly taken down, the said justice. or judge shall grant an order requiring such person to show cause before him, at a time and place specified, why he should not appear, be sworn or affirmed, testify, answer a question or questions propounded, produce a book or paper, or subscribe to the deposition, as the case may be. Such affidavit shall also set forth the nature of the action or special proceeding in which the testimony is sought to be taken, and a copy of the pleadings or other papers defining the issues in such action or special proceeding, or the facts to be proved therein. Upon the return of such order to show cause, the said justice or judge, as the case may be, shall, upon such affidavit and upon the original petition and upon such other facts as shall appear, determine whether such persons should be required to appear, be sworn or affirmed, testify, answer the question or questions propounded, produce the books or papers, or subscribe to his deposition as the case may be, and may prescribe such terms and conditions as shall seem proper. Upon proof of a failure or refusal on the part of any person to comply with any order of the court made upon such determination, the justice or judge, as the case may be, shall make an order requiring such person to show cause before him, at a time and place therein specified, why such person should not be punished for the offense as for a contempt. Upon the return of the

order to show cause, the questions which arise must be determined. as upon a motion. If such failure or refusal is established to the satisfaction of the justice or judge before whom the order to show cause is made returnable, the justice or judge, as the case may be, shall enforce the order and prescribe the punishment as hereinbefore provided. The commissioner herein provided for shall not proceed to act under and by virtue of his appointment until the party seeking to obtain such deposition has deposited with him a sufficient sum of money to cover all costs and charges incident to the taking of the deposition, including such witness fees as are allowed to witnesses in this state for attendance upon the superior courts, and from such deposit said commissioner shall retain whatever amount may be due him for services, pay such witness fees and other costs that may have been incurred by reason of taking such deposition, and if any balance remains in his hands he shall pay the same to the party by whom it was advanced.

1903, c. 608.

XI. WRITINGS, PRODUCTION, INSPECTION.

1656. Inspection before trial. The court before which an action is pending, or a judge thereof, may, in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any books, papers, and documents in his possession or under his control, containing evidence relating to the merits of the action or the defense therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.

Code, s. 578; R. C., c. 31, s. 82; R. S., c. 31, s. 86; 1821, c. 1095; C. C. P., s. 331; 1828, c. 7. Court has power to order production of paper which contains evidence pertinent to issue, and which is in possession or control of adverse party: Whitten v. Tel. Co., 141-361; McDonald v. Carson, 94-497; Austin v. Secrest, 91-214; McLeod v. Bullard, 84-515; Linker v. Benson, 67-150; McGibboney v. Mills, 35-163.

Order for administrator, who as bank cashier kept intestate's accounts, to produce books of bank and also such bonds as belong to intestate for inspection of plaintiffs, is valid under section: Comrs. v. Lemly, 85-341. Petition or motion supported by affidavit will be sustained for inspection and copy of books of adverse party: Justice v. Bank, 83-8—where it is made to appear that party applying for order can not obtain information sought otherwise than by such inspection, Ibid-and order will be granted before complaint filed when it is averred by applicant and not denied by opposing litigant that such discovery necessary to enable plaintff to accurately frame complaint, Ibid; Holt v. Warehouse Co., 116480; but see Branson v. Fentress, 35-165.

Supreme court will not pass upon propriety of discharging rule under