the testimony is to be taken elsewhere than in the United States or in Canada. Nor can the applicant be examined in his own behalf, as prescribed in those sections, except by consent of the parties. New. § 896. Notice of examination upon oral questions.Where a commission is issued, to take testimony without written interrogatories, as prescribed in section 893 or section 894 of this act, notice of the time and place of the examination of a witness, by virtue thereof, naming the witness, must be served as prescribed in section 899 of this act. New. See 899, post. 897. Open commission.-An open commission must be directed to one or more persons, named therein, and must authorize them, or any one of them, to examine any witness who may be produced by either party, on or before a day specified therein, upon oral questions to be put to the witness, when he is produced; to take and certify the deposition of each witness so examined; and to return the same, and the commission, immediately after the expiration of the time limited for the production of witnesses, according to the directions, given in or with the commission. New. §898. Order directing depositions to be taken.-An order, directing that depositions be taken, must specify the time within which they must be taken, and the manner in which they must be returned. It may also contain such additional directions, not inconsistent with the next section, with respect to the time and manner of giving notice, as the court or judge deems proper. The order must be entered in the clerk's office; and a certified copy thereof must be annexed to each deposi tion, or set of depositions, returned as prescribed in the following sections of this article. From L. 1853, ch. 387, 4, am'd. 899. Before whom depositions may be taken; notice of taking. - A deposition may be taken, pursuant to such an order, before a person mutually agreed upon by the parties, or a chancellor, or a judge of a court of record, or the mayor or other chief magistrate of a city, or a justice of the peace of the state or territory, where the witness is; who is not counsel or attorney for either party, and would not be disqualified, by reason of affinity or consanguinity to a party, or interest in the event, from serving as a juror upon the trial of the action, within the State.(1) Written notice of the time and place of taking a deposition, specifying the name of the witness, and the person before whom it will be taken, must be served by the party, at whose instance it is taken, upon the attorney for the adverse party. (2) The time for serving such a notice must be, at least, five judicial days before the deposition is taken; and one judicial day, in addition, for each fifty miles, by the usual route of travel, between the residence of the attorney for the adverse party, and the place where the deposition is to be taken. L. 1853, ch. 357, part of 4, and 5, am'd. (1) See Anon., 59 N. Y. 313. (2) Jackson v. Kent, 7 Cow. 59. § 900. How depositions taken. Upon the examination of a witness, without written interrogatories, by virtue of a commission, or of an order to take deposi tions, the commissioner, or the person before whom the deposition is taken, must take down, or cause to be taken down, as prescribed in the next section, the substance of the witness's testimony; unless he is directed, in the commission or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers, word for word. Unless the commission or order otherwise directs, the person, appearing for either party, may ask any question, which he deems proper, and the witness's answer must be taken accordingly, the objections thereto being reserved, without being specified at the time of examination. A copy of this section must be annexed to each commission to take testimony without written interrogatories, and to each certified copy of an order to take a deposition. New. See Goodyear v. Vosburgh, 41 How. 421: Gates v. Beecher, 60 N. Y. 518; Clayton v. Yarrington, 16 Abb. 275, n.; Hall v. Barton, 25 Barb. 274. 901. Commission or order to take depositions; how executed and returned.—The person, to whom a commission is directed, or before whom a deposition is taken, unless otherwise expressly directed in the com mission, or in the order for taking the depositions, must execute the commission, or the order, as follows: 1. He must publicly administer, to each witness examined, an oath or affirmation to testify the truth, the whole truth, and nothing but the truth, as to the matters respecting which the witness is to be examined.(1) 2. He must reduce the examination of each witness to writing, or cause it to be reduced to writing, by a disinterested person. After it has been carefully read, to or by the witness, it must be subscribed by the witness.(2) 3. If an exhibit is produced and proved, the exhibit, or, if the witness, or other person having it in his custody, does not surrender it, a copy thereof, must be annexed to the deposition to which it relates, subscribed by the witness proving it, and numbered or otherwise identified, in writing thereupon, by the commissioner, or person taking the deposition, who must subscribe his name thereto.(3) 4. The commissioner, or person taking the deposition, must subscribe his name to each half sheet of the deposition; he must annex all the depositions and exhibits to the commission, or to a certified copy of the order for taking the deposition, with the certificate specified in the next section; and he must close them up under his seal, and address the packet to the clerk of the court, at his official residence.(4) 5. If there is a direction, on the commission, or in the order, to return the same through the post-office, he must immediately deposit the packet, so addressed, in the post-office, and pay the postage thereon.(5) 6. If there is a direction on the commission, or in the order, to return the same by an agent of the party, at whose instance it was issued or granted, the packet so addressed must be delivered to the agent.(6) 7. Where a commission is directed to two or more persons, one or more of them may execute it, as prescribed in this and the next section.(7) A copy of this and of the next section must be annexed to each commission, or order to take depositions, authorized by this article (8) 2 R. S. 394, 16, and L. 1853, ch. 357, 236, 7 and 8. (1) Hall v. Barton, 25 Barb. 274; Halleran v. Field, 23 Wend. 38; Lincoln r. Battelle, 6 id. 475; Williams v. Eldridge, 1 II, 249; Whitney . Wyncoop, 4 Abb. 370; Bailis v. Cochran, 2 Johns. 417; Bolte r. Van Rooten, 4 id. 130; Goodyear v. Vosburgh, 41 How. 421. (2) Ballis v. Cochran, 2 Johns. 417. (3) Brunnskill r. James, 11 N. Y. 301; Hall v. Barton, 25 Barb. 277. (4) Burrill v. Watertown Bank and L. Co., 51 id. 105; Fleming v. Hollenback, 7 id. 274: Pendell . Coon, 20 N. Y. 134: Brown r. South worth. 9 Pal. 351, Leetch r. Atlantic Mut. Ins. Co., 4 Daly, 518; Jackson r. Shepherd, 6 Cow, 414. (5) Goodyear t. Vosburgh, 41 How 421: Halleran . Field, 23 Wend. 40: Hall v. Barton, 25 Barb. 277; Brunnskill v. James, 11 N. Y. 294. (6) Dwinell v. Howland, 1 Abb. 87. (7) Leetch . Atlantic Mut. Ins. Co., 4 Daly, 518. (8) Hall v. Barton, 25 Barb. 274; Williams e. Eldridge, 1 Hill, 249. 902. Certificate of execution. The commissioner or other person, before whom one or more depositions are taken, must subscribe, and annex to each deposition, a certificate, substantially in the following form, the blanks being properly filled up: "State (or "territory") "of County" (or "parish") "of "I, do certify that appeared before me on the in the at the noon, SS.: the witness, personally day of at o'clock in the state "" (or "territory ")" of and after being sworn" (or "affirmed," as the case may be), "to testify the truth, the whole truth, and nothing but the truth, did depose to the matters contained in the foregoing deposition, and did, in my presence, subscribe the same, and indorse the exhibits annexed thereto. And I further certify that I have subscribed my name to each half-sheet thereof, and to each exhibit. And I further certify that appeared in behalf of the behalf of the From L. 1853, ch. 387, 7. , and that " appeared in 903. Certificate, a sufficient return. - The certificate, specified in the last section, is a sufficient return to a commission. New. Goodyear v. Vosburgh, 41 How. 421. § 904. Return by agent. If the packet, specified in section 901 of this act, is delivered to an agent, he must deliver it to the clerk, to whom it is addressed, or to a judge of the court, either of whom must receive and open it, upon the agent making affidavit, that he received it from the hands of the commissioner, or the per son who took the deposition, and that it has not been opened or altered, since he so received it. 2 R. S. 394, 17. Dwinelle v. Howland, 1 Abb. 87; Goodyear v. Vosburgh, 41 How. 421. 905. If agent is sick or dead. If the agent is dead, or, from sickness or other casualty, is unable to deliver the packet personally, as prescribed in the last section, it must be received, by the clerk or judge, from the hands of any other person, upon the latter making an affidavit, that he received it from the agent; that the agent is dead, or otherwise unable to deliver it; that it has not been opened or altered since he received it; and that he believes that it has not been opened or altered, since it came from the hands of the commissioner, or the person who took the deposition. 2 R. S. 394, 18. 906. Filing deposition, etc., so returned. — The clerk or judge, who receives and opens the packet, as prescribed in the last two sections, must indorse thereupon, and sign, a note of the time of the receipt and opening thereof, and immediately file it in the office of the clerk; together with the affidavit of the person, who delivered it to him. Id., 19, am'd. § 907. The same. If the packet is transmitted through the post-office, the clerk, to whom it is addressed, must receive it from the post-office, open it, indorse thereupon, and sign, a like note of the time of the receipt and opening thereof, and immediately file it in his office. Id., 20; 2 R. S. 394, 20. Whitney v. Wyncoop, 4 Abb. 370; Hall v. Barton, 25 Barb. 274. 908. Commission, etc., by consent.. A commission may issue, or an order to take depositions may be made, by consent, in a case where either may be directed by the court or a judge, as prescribed in this article. On filing a stipulation to that effect, signed by the attorneys for the parties, the clerk must enter an order accordingly; and thereupon the attorney for the party. procuring the order, may insert in the commission, or indorse upon or annex to it, or the order, the necessary directions for the execution and return thereof, according to the stipulation. Id., 21, remodelled. Williams v. Eldridge, 1 Hill, 249; Goodyear r. Vosburgh, 41 How. 421. 909. Where return to be kept; parties may in spect it, etc. A commission, or copy of an order to |