b. NAME AND Address oF ADVERSE PARTIES Where the applicant expects to be a party to an action, he should set out in his petition the name of the person or persons who he expects will be adverse parties.'

Name and Address of Person to Be Examined. The petition should also set out the name and residence of the person to be examined.2 Nature of Controversy. · - Where an action is anticipated, the petition should set out the nature of the controversy which is expected to be the subject thereof.3

c. MATERIALITY AND NECESSITY OF TESTIMONY. — The petition must show that the testimony of the person to be examined is material and necessary.

d. PROBABLE INABILITY OF WITNESS TO ATTEND. - A petition or affidavit need not state that the witness will probably be unable to attend on the trial. 5

e. ALLEGATION OF GOOD FAITH. Although it seems, according to some decisions, that on an application to perpetuate testi

Court of Chancery, for it was the necessity of the case which first led the court to entertain bills for the perpetuation of testimony. We find on referring to the books that it was deemed necessary to perpetuate testimony where a person interested in property was in danger of losing the evidence of his right before it could be judicially investigated. To prove that such danger existed it was incumbent on the complainant to allege that he had an interest, present or contingent, in the property, and that the defendant also had or claimed to have an interest. He was further bound to show that he was in danger of losing his witnesses by sickness, age, death, or departure from the jurisdiction, or that his case rested upon the evidence of only one witness."

1. Code of Pro. Colo., 1890, § 366; Code Civ. Pro. Cal.. 1897, § 2084; I Birdseye's Rev. Stat. N. Y., 1896, p. 855; Code Iowa, 1897, § 4718.

Designation of Adverse Party. Where, in a proceeding to perpetuate testimony, the petition stated the name of the person interested as the " C., B. & Q. R. R. Co.," it was held that it was not a sufficient designation of the corporation whose name was the "Chicago, Burlington & Quincy Railroad Company," so as to render the evidence taken in such proceeding afterwards admissible as against such corporation. Accola v. Chicago, etc., R. Co., 70 Iowa 185.

Description of Persons Interested Whose Names Are Unknown. - Code Iowa, 1897,

§ 4718, provides that in the verified petition the names of the persons interested shall be set forth, if known to the applicant, and if not known, such general description as he can give of such persons, as heirs, devisees, alienees, or otherwise. See also Accola v. Chicago, etc., R. Co., 70 Iowa 185.

2. Code of Pro. Colo., 1890, $ 366; Code Civ. Pro. Cal., 1897, § 2084; Birdseye's Rev. Stat. N. Y., 1896, p. 855; Code Iowa, 1897, § 4718; Martin v. Hicks, 1 Abb. N. Cas. (N. Y. Supreme Ct.) 341.

3. Code Civ. Pro. N. Y., § 871; Accola v. Chicago, etc., R. Co., 70 Iowa 185; Matter of Bryan, 3 Abb. N. Cas. (N. Y. Super. Ct.) 289.

Affidavit in Anticipated Action for Slander. Under section 871 of the New York Code of Civil Procedure, one who expects to be a party plaintiff in an action for slander cannot examine a witness to whom the alleged slander was spoken, unless the affidavit discloses what the slander was, or at least sufficiently describes the cause of action by setting out the slanderous words or their substance. Matter of Bryan, 3 Abb. N. Cas. (N. Y. Super. Ct.) 289.

4. Matter of Bryan, 3 Abb. N. Cas. (N. Y. Super. Ct.) 289; Martin v. Hicks, i Abb. N. Cas. (N. Y. Supreme Ct.) 341; Matter of Ketchum, 60 How. Pr. (N. Y. C. Pl.) 154.

5. Jackson v. Perkins, 2 Wend. (N. Y.) 308, 316. See also Martin v. Hicks, 1 Abb. N. Cas. (N. Y. Supreme Ct.) 341.

mony it should appear that it is in good faith, it is not necessary that the affidavit or petition should contain an affirmative allegation to this effect.2

7. Verification of Petition. Although, as has been seen,3 a petition for the examination of witnesses to perpetuate their testimony must be verified, yet where several persons unite in the petition, a verification of such petition by the affidavit of one petitioner only has been held sufficient.1

8. Granting of Petition. According to some decisions it has been held that the application is not a matter of right, and that the absence of doubt as to the witness's ability to attend raises a presumption of bad faith, while according to others the perpetuation of testimony in a case within the statute is a matter of right. The better holding is probably that the granting of the petition lies in the discretion of the officer to whom the application is made, in so far that he may refuse it where there is no doubt that the object of the applicant is other than the mere perpetuation of the testimony.s Where, however, the facts required by the statute are shown to the proper court or officer, and the application appears to be made in good faith and solely for the

purpose intended by the statute, the granting of the petition is usually a matter of course.1

9. Order of Examination. Upon the granting of the petition, the judge to whom it is addressed should make an order allowing the examination of the desired witnesses. Where the examination is not to be before the judge granting the petition, this order should designate the officer before whom the examination is to be taken, and should prescribe the notice to be given.1

10. Notice-Necessity of. Notice of the taking of a deposition in perpetuam must be given to the parties interested in the subject-matter to which the deposition relates.

Manner of Service.

A copy of the order and of the affidavit upon which it was granted should be personally served upon each of the persons named therein as expected adverse parties. 11. Manner of Taking Deposition-In General. In taking depositions in perpetuam, the form of the law under which they are taken must be directly pursued, or they cannot be read in evidence." The questions and answers must be reduced to writing, and the latter must be as nearly as possible in the words of the witness. The deposition should be read over to said witness.

1. Matter of Carter, 3 Oregon 293. See also Martin v. Hicks, 6 Hun (N. Y.) 238.

2. As to the making and requisites of orders in such cases, see the statutes and codes of the various states. See also Lang v. Brown, 6 Hun (N. Y.) 256; Jackson v. Perkins, 2 Wend. (N. Y.) 308.

3. Lang v. Brown, 6 Hun (N. Y.) 256. In this case the court said: In all cases where an application is made to an officer authorized to take the testimony, he may make the order returnable before any other officer authorized to take the examination in the county where the witness resides."

4. See the statutes and codes of the various states. And see Jackson v. Perkins, 2 Wend. (N. Y.) 308.

5. Indiana. - Long v. Straus, 124 Ind. 84.

Massachusetts. Welles v. Fish, 3 Pick. (Mass.) 73; Faunce v. Gray, 21 Pick. (Mass.) 243.

New Hampshire. born, 10 N. H. 473. New Jersey.

Dearborn v. Dear

Middleton v. Taylor, 1 N. J. L. 508; Arnold v. Renshaw, II N. J. L. 317; Ludlam v. Broderick, 15 N. J. L. 269. Ohio. Myers v. Anderson, Wright (Ohio) 513. 6. Service on Attorney. - Notice of taking evidence for the purpose of per

petuating it must be served upon the party, and service on the attorney is bad. Middleton v. Taylor, 1 N. J. L. 508; Arnold v. Renshaw, 11 N. J. L.

317.

But see Ludlam v. Broderick, 15 N. J. L. 269.

Reasonable Notice. - In Ludlam v. Broderick, 15 N. J. L. 269, it was held that whether the notice was reasonable is a matter in the discretion of the judge.

Notice by Publication. Where a statute authorizes notice of the taking of depositions in perpetuam to be made by publication, the requirement of the statute must be strictly followed in order to render the deposition available in evidence. Patterson v. Fagan, 38 Mo. 70. In this case the statute in relation to the perpetuation of testimony required that the notice, when given by publication, should be published once a week for one month, at least two months previous to the time of taking the depositions. It was held that a deposition, although recorded, which did not show such notice could not be read in evidence.

369

70.

7. Patterson v. Fagan, 38 Mo. As to Manner of Taking Depositions in General see article DEPOSITIONS, vol. 6, p. 471.

8. Patterson v. Fagan, 38 Mo. 70. 9. Patterson v. Fagan, 38 Mo. 70. Volume XVI.

It should then be forwarded to the proper officer, within a specified time, for the purpose of being recorded.1

By Commission. — Where it appears that the testimony of one or more witnesses not within the state is material, it is usual to authorize a commission to issue to one or more competent persons named therein, authorizing them, or any one of them, to examine the witness or witnesses named therein, under oath, upon the interrogatories annexed to the commission, to take and certify the deposition of each witness, and to return the same to the commission, according to the directions given in or with the commission.2

12. Recording. According to the statutes in many of the states depositions in perpetuam, in order to be available in evidence, must be recorded with a specified officer.3

PERSONAL INJURIES.

BY JAMES B. CLARK.

I PLACE OF TRIAL, 373.

II. NATURE AND FORM OF ACTION, 373. 1. Contract or Tort, 373.

2. Trespass or Case, 374.

III. JOINDER OF CAUSES OF ACTION, 374.

1. Injuries to Person and Property, 374.

2. Injuries to Husband and Wife, 375.

3. Injury to Per son and Cause of Action for Death, 375. 4. Legal and Equitable Causes of Action, 376.

IV. CONSOLIDATION OF ACTIONS, 376.

V. PLEADING AND PROOF, 376.

1. Generally, 376.

2. Cause of Injury, 376.

3. The Injury, 377.

4. Natural and Necessary Consequences, 381.

Particular Injuries, 383.

6. Physical Condition Prior and Subsequent to Injury, 386. 7. Pain and Suffering, 387.

8. Expenditures, 390.

9. Impairment of Earning Capacity, 383.

10. Permanent Effects, 401.

11. Habits-Condition in Life - Family Relations, 404.

12. Life Expectancy, 404.

13. Definiteness and Certainty, 405.

14. Amendments, 406.

15. Waiver and Cure of Variance, 407.

VI. BILL OF PARTICULARS, 408.

VII. PLEA OR ANSWER, 409.

VIII. INSTRUCTIONS, 410.

1. Suggesting Mode of Computing Damages, 410.

2. Assumption of Facts, 411.

3. Argumentative Instructions, 412.

4. Authorizing Conjecture or Speculation, 413.

5. Verbal Inaccuracies, 414.

6. Misleading and Obscure Instructions, 415.

a. Generally, 415.

b. Reference to Pleadings to Determine Issue, 416.

c. Comments on Evidence, 417.

d. Measure of Damages, 418.

e. Authorizing Double Recovery, 419.