278 EVIDENCE. [ART. 37.

take the deposition of witnesses, on such notice to the opposite
party and in such manner as the court shall prescribe.

17. Every commissioner so appointed, before he proceeds to
act as such, shall take an oath before some judge or justice "that
he will faithfully and impartially execute the duties of commis-
sioner aforesaid according to the best of his judgment," a cer-
tificate of which oath shall be recorded among the records of the
court by which such commissioner is appointed.

18. Either party in any action depending in said courts, after
due notice to the other party or his attorney, agreeably to such
rule as shall be made by the said courts respectively, may take
the deposition of any witness before any of the said commis-
sioners, to be used as testimony on the trial of such action, in
case only of the death of such witness, or on proof to the satis-
faction of the court of the inability of the party to procure the
attendance of such witness at the time of trial, and the probable
continuance of said inability until and at the next term, before
the court shall permit such testimony to be used, and the oppo-
site party shall be entitled to cross-examine any witness whose
deposition shall be so taken, or to examine him or her on notice,
before the same or any other commissioner.

19. All depositions and examinations taken by such commis-
sioner shall be certified and returned by the commissioner taking
them, under his hand, to the clerk of the court in which it shall
be intended to use them; and if such court shall be any other
than that by which such commissioner was appointed, there
shall be annexed to his return a certificate by the clerk, under
the seal of the court, that he is commissioner.

20. All depositions so taken and returned shall be subject to
the same exceptions and objections as the testimony of the same
witness would be if examined in open court, and shall have the
same effect and validity.

21. Any person may have the deposition of any witness who
may have knowledge of any fact, in proving which such person
may apprehend himself to be interested, taken before any of
said commissioners upon ten days' notice to each party against
whom such depositions shall be intended to be used, or to his
agent, attorney or guardian, if such party be a minor, if within
this State, and the court in which the same is offered in evidence