
    PHŒNIX v. DUPUY.
    
      N. Y. Common Pleas; June Term,
    1877.
    Examination before Trial.—Discretionary Order.
    Examination of an adverse party before trial under the Code, is a substitute for the former remedy by bill of discovery.
    
    So far as it is applicable, the practice which prevailed in equity is necessarily the guide as to the extent and nature of the discovery to which a party is entitled by such examination of his adversary. Such an examination should not be required in an action of libel, especially where it is sought to compel defendant to disclose whether he published the libel; or enable plaintiff to prove malice or damage, and his affidavit does not state facts having a tendency to show actual malice, or special damage.
    The party is not to be left to the protection afforded by a claim of his privilege as a witness.
    An o;rder requiring the defendant to submit to examination in such case should be vacated on appeal.
    Appeal by defendant from two orders.
    John W. Phoenix sued Charles Dupuy, to recover damages for alleged, libel. Plaintiff obtained an order requiring defendant to appear and submit to examina- • tion before trial. The allegations of the "affidavit on which he obtained this order were as follows: •
    ‘‘I am the attorney for the plaintiff herein. This action was brought on or about October 9,1876, by service of á summons on the defendant, and thereafter the complaint was duly served aEeging certain libels of said plaintiff by said defendant and claiming $17,000 damages therefor. Issue was joined by the service of defendant’s answer to said complaint on or about December 9, 1876, and said cause is now upon the calendar of this court for trial. On behalf of the plaintiff, I desire to examine said defendant as a party before trial; and upon such examination I shall endeavor to disclose that the letters set forth in said complaint were pubEshed by said defendant; so in malice; were received by the parties to whom they were addressed; and that in consequence said plaintiff has been injured as aEeged in said complaint; and furthermore the same is necessary to enable this plaintiff to successfuEy prosecute his suit, inasmuch as aE the ' same said facts are not admitted in said answer.
    “I am informed and believe said Charles Dupuy resides in Flushing, N. Y., is engaged in business in this city, and can be served here.”
    Defendant’s counsel moved before another judge to vacate the order, but the motion was denied on the ground that the remedy was only by appheation to the judge who granted the order. The defendant was required to submit to examination. He then appealed from the order for examination, and also from the order refusing to vacate the former order.
    
      George W. Van Siclen, for defendant, appellant.
    I. While the order for such examination is in the discretion of the court, that discretion can only be exercised where the court has power to grant such an order. The court has power to grant an order for examination of party before trial, in a case in which equity would formerly have sustained a bill of discovery. The power given by the Code to examine an adverse party before trial is a substitute for the bill of discovery in chancery (Glenney a. Stedwell, 1 Abb. N. C. 327; Carr v. Gt. Western Ins. Co., 3 Daly, 160). In the case at bar a bill of discovery would not have been granted in equity.
    II. The facts that plaintiff desires to prove can easily be proved in another way, and plaintiff was therefore not entitled to the order (Gelston v. Hoyt, 1 Johns. Ch. 543 ; Brown v. Swann, 10 Pet. 501, cited in 1 Abb. N. C. 338). If he has sued without having known, before he brought his suit, all those facts, a court of equity will not aid him to find all this out, and prove it out of defendant’s own mouth, thus rendering the latter liable to indictment. This method of examination is not to be used by a party “to get information as to whether he had any case ” (Robinson, J., in Schepmoes v. Bousson, 1 Abb. N. C. 481).
    III. The examination could not have been granted in aid of indictment (see Montague v. Dudman, 2 Ves. Sr. 398, cited in 1 Abb. N. C. 339).
    IV. The bill of discovery would not have been allowed, and consequently the court had no power to grant, an order for examination, to compel a party to answer as "to matters which it appears from the papers would tend to subject him to indictment, penalty or forfeiture, or anything in that nature, other than the loss of the claim in suit (Taylor v. Bruen, 2 Barb. Ch. 301; Conant v. Delafield, 3 Edw. Ch. 201; Sharp v. Sharp, 3 Johns. Ch. 407 ; Deas v. Harvie, 2 Barb. Ch. 448; Leggett v. Postley, 2 Paige, 599); e. g., it was not allowable in libel or slander, as against defendant (Marsh v. Davison, 9 Paige, 580; Bailey v. Dean, 5 Barb. 297). The action at bar is for damages for alleged libel. If defendant should answer affirmatively the plaintiff’s questions upon the points set forth in the moving affidavit, it would subject defendant to indictment.
    
      V. The defendant, as a witness, could not be compelled to answer any question, if the answer would tend to criminate him, or would form a link in a chain of evidence which would render him liable to indictment (People v. Mather, 4 Wend. 229 ; Exp. Tappan, 9 How. Pr. 394). A bill of discovery would not be sustained against him in such a case (Taylor v. Bruen, 2 Barb. Ch. 301 ; McIntyre v. Mancius, 16 Johns. 592.)
    VI. The answer to every question, therefore, which the plaintiff can ask this defendant relevant to the issue (and he can ask no other), would tend to convict the defendant of libel, or form a link in the chain of evidence which might render him liable to punishment. But none of such questions may be asked the defendant ; he need answer none of them. Take for example the first question which was asked this defendant, when the examination went on under the order appealed from (a stay of proceedings pending this appeal having been refused): “Are you the defendant in this action?” ; if joined to other questions put to other witnesses on the trial, this might be a link in the chain ; it is only “identification” ; but identification is an important point in a criminal trial. I have in mind a notable case in which ex-Mayor Hall lately appeared for the defense, and raised that very point of identity of the accused. In Conner v. Bradley (Anthon's N. P. 99), an action for usury, the witness was sworn, and upon being asked the first question, stated to the court that he “had been interested and concerned in the contract from the beginning,” and claimed his privilege. No questions were asked. The witness cannot be forced to answer, if it would tend to criminate him to a penalty (Cloyes v. Thayer, 3 Hill, 364 [usury]; Burns v. Kempshall, 24 Wend. 360 [usury]). Cowen, J., says : “Anyone of them” (the questions), might, if answered, have furnished a link in the chain of proof that usurious interest had been paid” (Byass 
      v. Smith, 4 Bosw. 679 [counterfeiting label] ; Van Tine v. Nims, 12 How. Pr. 507 [bribery]; Vilas v. Jones, 10 Paige, 76 [usury] ; Fellows v. Wilson, 31 Barb. 162 [usury]; Curtis v. Knox, 2 Denio, 341 [usury] ; Ward v. The People, 3 Hill, 395 [larceny] ; Exp. Tappan, 9 How. Pr. 394 [libel]; People v. Mather, 4 Wend. 229 [conspiracy to kidnap, Morgan’s case].). Citing 16 Vesey, 242; “ If it is one step having a tendency to criminate him, he is not compelled to answer.” Citing also (on simony), Parkhurst v. Lawton (2 Swans. 215), “However remotely connected with the fact.” Citing also Burr’s Trial, 424, Marshall, Ch. J., “ Many links compose the chain.”
    
      Charles Meyer, for plaintiff, respondent.
    The order and summons were proper. The moving affidavit discloses every fact necessary. The circumstance that it discloses a desire on the part of the plaintiff to prove by the defendant certain facts to which he personally, not by counsel, nor yet the court, could object, is no objection to the granting of the order. It is an absolute and unqualified right of the plaintiff to examine the defendant before trial, and that right cannot be denied or abridged by reason of the possibility of -an improper line of examination being resorted to. When an improper question is asked of the witness it may then be objected to, and then and only then passed upon. Not now by anticipation. The testimony sought to be obtained from the defendant as disclosed by the affidavit, is perfectly proper in itself. If there be an objection to it, as suggested by counsel, that it would tend to criminate the witness, that is a personal privilege to him, which he can exercise, and he alone, and when examined, not before.. And it must be claimed under oath (Parry v. Almond, 12 Serg. & R. 284; United States v. Burr, 1 Robertson’s Trial, 207, 208, 242-245). Inasmuch, therefore, as the learned judge who ordered the examination could not raise the objection, the examination was properly ordered, the privilege being still with the witness upon the examination. The right to examine a party before trial is a substitute for a bill of discovery only in the sense that one remedy has been abolished and another established which accomplishes the same result, but not in that the new remedy is governed by the same rules as the old, where the cases are not parallel. The statute gives the absolute and unqualified right to examine an adverse party before trial, subject only to such rules of examination as are in vogue upon the examination of any witness, either conditionally or upon the trial (Code, §§ 389, 391). Under the old practice, the interrogatories were substantially proposed by the MU of discovery, and the objections were properly entered to the interrogatories^.e., issue joined upon the bill), then; but under section 391 of the Code, these objections could not be interposed upon the granting of the order of examination, inasmuch as no interrogatories are then proposed. The judge, in granting the order, could not speculate upon possibilities (which exist in every case) that an improper question would be asked, or that a privilege personal to the individual to be examined, not as defendant, but as a witness, would be claimed (Greenleaf on Evidence, vol. 1, § 451). The privilege, until claimed by the witness, could not be asserted, either by the court or by counsel for either party to the suit. Charles Dupuy occupies two positions with respect to this proceeding,—that of defendant and that of a witness. As defendant, he may object by counsel to any inquiry which is incompetent, irrelevant or immaterial, as injuriously affecting his rights in the action; and as a witness, he may object to any inquiry, the result of which would tend to criminate him. The latter is a personal privilege, having no reference to the action, he is not entitled to counsel, and must claim Ms privilege without suggestion from the counsel for him as defendant, he, as witness, being entitled to no counsel (Thomas v. Newton, 1 Mood. & M. 48, note). The inquiry sought by plaintiff was in itself proper, having reference to 'the cause of action ; and the objection alleged is a personal privilege to the witness, which he has not claimed, and could not claim until examined, and the moving affidavit presents proper grounds for granting the order and summons. Hence the objections are untenable.
    
      
      See note at the end of this case, and compare previous cases in this volume.
    
   By the Court.—Daly, Ch. J.

The examination of an adverse party before trial provided for by section 391 of the Code, is a substitute for the former remedy by bill of discovery, which was abolished by this chapter of the Code, and this substituted remedy may be had where a bill for a discovery would previously have been sustained (Carr v. G. W. Ins. Co., 3 Daly, 160; King v. Leighton, 58 N. Y. 383; Glenny v. Stedwell [court of appeals], 1 Abb. N. C. 327, and note 332; 64 N. Y. —; Wiggin v. Gans, 4 Sandf. 647).

This remedy was formerly the only way in which proof of a fact exclusively within the knowledge of one of the parties could be obtained, because parties in actions at law could not then, as they can now, be called as witnesses upon the trial. It was, moreover, the only effectual mode of getting at a knowledge of the contents of documents which were in the possession of the other party, and of proving what they contained; for the relief which courts of law could afford was limited and attended with many difficulties before the statutory remedy was enacted for compelling the. production and inspection of books and papers by a motion before trial. The statutory provision allowing parties to be examined as witnesses, either on their own behalf or by the adverse party, and of compelling, by motion, the inspection of books and papers, have to a great degree dispensed with the necessity of this discovery of evidence before trial, although the right to it remains the same as before.

In view of the abuses that would arise if a party, either before any action was brought or before he had stated his cause of action in a pleading, or after an answer had been served, were allowed, without any restriction or limitation, to subject the other party to an inquisitorial investigation, under oath, to ascertain whether he could make out a cause of action, or whether his adversary could probably succeed in establishing a defense, courts of equity, at an early period, imposed limits to such investigations, by requiring that it should appear by the bill that the matter sought to be discovered was essential to the establishment of a cause of action or'of a defense. “ A system of judicial inquiry,” says Mr. Hare, “would be obviously defective which had no means of obtaining and compelling a production of evidence from the parties themselves, whilst a system which should set no bounds to the power of scrutiny would be fertile in expedients of oppression.’ ’ And in respect to the rules and principles by which courts of equity were guided in allowing or refusing such discoveries, he further remarks : “They are the result of that scrupulous care with which a long succession of eminent judges have asserted the power of judicial investigation, without sacrificing the security and secrecy which all are entitled to claim and to preserve. They define and reconcile the rights of individual privacy and the demands of public justice. They express the extent of the privilege,” whilst the limits they impose are “identified with the administration of justice and depend upon principles which are perpetual” (Hare on Discovery, 11, 12, 13).

Bills for the discovery of evidence being, however, expensive and dilatory, were so seldom resorted to after the inspection of documents could be compelled by motion, and especially after parties could in all cases be examined as witnesses, that the object of this provision in the Code abolishing such bills, and substituting in their stead the simple and inexpensive procedure provided for by section 391, appears not to have been understood or but imperfectly. By many it was interpreted literally, as giving the right to examine the party before trial without any restriction or limitation whatever—wholly overlooking the history of this branch of jurisprudence and the abuses, injustice and oppression that could be practised if that were permitted. Judge J. L. Mason, it is true, shortly after its' enactment, declared, in Wiggin v. Gans (4 Sandf. 647), that this provision was a substitute for bills of discovery, and nothing else; “that the examination referred to in it, meant, upon every fair principle of interpretation, any examination for the purpose of discovery, in which formerly a bill of discovery would have been resorted to and that “wherever a bill of discovery could have been filed, under the former practice, in support or defense of an action, there the party might be examined in the mode presented in this chapter, and in no other mode. But this interpretation was not followed, and it was held in subsequent cases, as it had been previously held, that upon a simple notice of five days, given by the opposite party, except the judge should, by order, fix a different time, a party was compelled, before the trial, to appear before the judge, at the time and place specified in the notice, and be examined under oath as a witness (Taggart v. Gardner, 2 Sandf. 669 ; Green v. Wood, 15 How. 342; Cook v. Bidwell, 19 Id. 483).

In Garrison v. Mariposa Co. (N. Y. Com. Pleas, S. T., 1868), I declined to follow these cases, and held, as Mason, J., had held, that it was simply a substitute for the former remedy by bill of discovery, that it was consequently subject to the rules and principles that courts of equity had applied to prevent abuse, oppression or injustice, and could not be had without an affidavit, showing that the discovery sought was of some matter material to the establishment of a cause of action or of a defense, so that the party could know exactly what he was called upon to discover, that he might as in a bill of discovery object to it as immaterial or improper, or if willing to do so, admit it; or if he were examined, that the judge might confine the investigation within the limits of the discovery sought (and see Carr v. Gt. Western Ins. Co., 3 Daly, 160).

The effect of holding that this examination of a party before trial was an absolute right without any qualification or restriction, soon became apparent where the party summoned his adversary to be examined in this way, before any complaint was filed, and where the judge had nothing before him to indicate what the examination was to be about, and was left wholly without guide as to its extent, range or purpose. In view of this difficulty, and the consequences to which it would lead, it was held in a large number of cases (from Chichester v. Livingston, 3 Sandf. 718, to Norton v. Abbott, 28 How. Pr. 388) that this examination could not be had until after issue joined. But this did not suffice. In later cases, this construction, for which there never was any foundation, was not adhered to, and it was held that the examination might be had either before or after issue joined (McVicker v. Ketchum, 1 Abb. Pr. N. S. 452; Bell v. Richmond, 50 Barb. 571), and to meet, under this interpretation, the difficulty before suggested, it was held, first by Barbour, J., in Green v. Herder (7 Robt. 455), that if the application was made before the service of a complaint, it must be upon an affidavit stating: 1. If made by the plaintiff, the nature of the action and demand; 2. If made by the defendant, the nature of his defense ; 3. The name and residence of the witness—and after-wards, by Jones, J., in Duffy v. Lynch (36 How. Pr. 509), that it must be upon an affidavit setting forth with particularity the facts and circumstances out of which the plaintiff supposes the cause of action to have arisen, the relief he supposes he is entitled to, the defense he anticipates, and the subjects upon which he desires to interrogate the other party. And this conflict of decision led to the adoption, by the convention of judges in 1870, of the twenty-first rule, the requirements of which were in effect to construe section 391 as providing for the kind of discovery by the examination of a party before trial which was formerly obtained by a bill in equity, and so far as it is applicable, the practice which prevailed in equity is necessarily the guide as to the extent and nature of the discovery to which the party is entitled by such an examination.

I have entered thus at length into an examination of this subject and of the contrariety of views and the confusion that has prevailed respecting the object of this section, for the reason that even now scarcely a week passes in this court without an application being made for the examination of a party under it, without anything being presented but an order for his examination at a specified time and place; so difficult has it been to impress upon practitioners that they have not the right to bring a party up in this way before trial and require him to answer, under oath, any questions that they may put to him.

In equity, a party was allowed to discover from his adversary any matter which was material to the establishment of Ms cause of action or of Ms defense, although he might have other witnesses to prove it, as the admission of the matter would dispense with the necessity of calling the witnesses, and it was no answer to the application that the other party might be examined as a witness upon the trial, for the one filing the bill was not bound to call him, as a witness, on the trial, but might have a discovery previously from him as a party (Plummer v. May, 1 Ves. Sr. 426; Montague v. Didman, 2 Id. 398; Finch v. Finch, Id. 492; Tooth v. Dean of Canterbury, 3 Sim. 49; March v. Davidson, 9 Paige, 601; Story Eq. Pl. § 119, and note; Wigram on Discovery, 2, 4; Hare on Discovery, 1, 110, 116, 187). And that this was what was meant by the codifiers in framing this section, appears from their referring in their report to “the great benefits to be expected by the relief it would afford to the rest of the community by exempting them from attending as witnesses to prove facts which the parties respectively know and ought never to dispute” (First Report of Coms. 244, 245). That the party from whom the discovery was sought might be protected, the one filing the bill was obliged to show not only that the matter sought to be discovered was material, but how it was material (McIntyre v. Mancius, 3 Johns. Ch. 47; S. C. in error, 16 Johns. 599 ; Kimberly v. Sells, 3 Johns. Ch. 467; Lane v. Stebbins, 9 Paige, 624, 625). And as a further protection, a discovery was not allowed as to certain matters to which I shall now have occasion to refer.

The affidavits on which the order for the defendant’s- examination in these two cases, before trial, were granted, state that the plaintiff shall endeavor, upon such examination, to disclose that the letters which constitute the libel for which the actions are brought were published by the defendant; that they were published in malice; that they were received by the parties to whom they were addressed, and that in consequence the plaintiff was injured.

The letters being libelous, the law would imply that there was malice, and that the plaintiff was injured by their publication; and as no fact is stated in the affidavit having a tendency to show actual malice or special damage, the discovery sought is reduced to the inquiry whether the defendant published the letters and to whom he sent them. The discovery which the plaintiff seeks is to compel the defendant to disclose whether he has published a libel, or, in other words, whether he has been guilty of a criminal offense for which he could be indicted and punished.

In the restriction imposed upon this right of discovery, nothing was better settled than that a party could not be compelled to discover any matter which might subject him to a penalty, a forfeiture, or a criminal prosecution (Hare on Discovery, part 3, chap. 1, § 1; Wigram on Discovery, 60,'§§ 83-94). “A plaintiff,” says Mr. Wigram, “whatever the merits of his case may be, is not entitled to a discovery from the defendant of any matter which would criminate him or tend to do so” (Wigram on Discovery, 195). Lord Eldon, in Paxton v. Douglass (19 Ves. 226), went even further, Saying: “ The strong inclination of my mind is to protect the party against answering any question, not only that has a direct tendency to criminate him, but that forms one step towards it.” In Baily v. Dean (5 Barb. 303), Judge Pratt was of opinion that a defendant could not be compelled to disclose facts to enable a plaintiff to sustain an action of slander, because in such actions punitory damages may be given; and in Browsward v. Edwards (2 Ves. Sr. 246), Lord Hardwicke said that the court would not force the party, by his own oath, to subject himself to punishment for usury (and see March v. Davidson, 9 Paige, 585; Taylor v. Bruen, 2 Barb. Ch. 301; Matter of Tappan, 9 How. Pr. 394; People v. Mather, 4 Wend. 254 ; Matter of Kipp, 1 Paige, 607).

It is apparent upon the face of the affidavits that that the plaintiff had no right to the discovery sought, and both orders should therefore, be vacated.

J. F. Daly and Larbemoee, JJ., concurred.

Note.—The new Code of Civil Procedure makes an important change in the form of the law as to examinations taken on deposition, and one which involves a change as to the manner in which the question whether the case is a proper one for examination before trial is presented; but it seems intended to preserve the rule stated in the case .in the text, and to leave the discretion of the court as to the enforcement of the order to be guided by the same principles that courts of equity have uniformly administered.

The now statute requires the judge to whom the application is made to grant an order for the examination of a party in an action pending,—as well as for the examination of a person whose testimony is material and necessary to one who expects to be a party to an action about to be brought,—in case an affidavit, complying with the statute, is presented. And the statute which prescribes the requisites of the affidavit makes no distinction in regard to the class of actions. Nor does it even expressly require that the applicant make a prima fade case showing a good cause of action. In this respect the language of the statute only requires him to set forth “the nature of the action and the substance of the cause of action and of the judgment demanded therein.”

Power to vacate the order is not expressly given by the statute, but it clearly exists. By sections 877 and 878 of the original act, provision was made allowing the party thus required to submit to examination to apply for its vacatur on certain specified grounds only; and in the discussions to which the new provisions gave rise these grounds being deemed too narrow to allow an equitable discretion to be exercised, the amendments of 1877 were adopted, repealing the restraints on vacating the order contained in sections 877 and 878.

It is to be observed also, that the provisions of the new Code relating to taking depositions for the purpose of a motion, exempts parties from being subjected to such examination, in accordance with the ruling in King a. Leighton. The provisions of the new statute, which should be read in connection with the cases in the text, are as follows:

Parties. § 870. “ The depositions of a party to an action, pending in a court of record, other than a court specified in sub-division sixteenth, seventeenth, eighteenth'.or nineteenth of section two of this act, may be taken, at the instance of an adverse party, or of a co-plaintiff or co-defendant, at any time before the trial, as prescribed in this article.”

The exception'is of certain inferior local courts.

Witness not a party. § 871. “The deposition of a person not a party, whose testimony is material and necessary to a party to an action, pending in a court of record, other than a court specified in sub-division sixteenth, seventeenth, eighteenth or nineteenth of section two of this act, or to a person who expects to be a party to an action, about-to" be brought in such a court, by a person other than the person to be examined, may also be taken, as prescribed in this article.

Affidavit. § 872. “The person desiring to take a deposition, as prescribed in this article, may present to a judge of the court in which the action is pending; or, if it is pending in the supreme court, to a county judge; or, if an action is not pending, but is expected to be brought, to a judge of the supreme court, or of a superior city court, or to a county judge; an affidavit, setting forth as follows:

“ 1. The names and residences of all the parties to the action, and whether or not they have appeared ; and, if either of them has •appeared by attorney, the name, and the residence or office address of the attorney; or, if no action is pending, the names and residences of the expected parties thereto.
“2. The nature of the action, and the substance of the cause of action, and of the judgment demanded therein; or, if no action is pending, the nature of the controversy, which is expected to be the subject thereof.
“3. If the application is made by the defendant in a pending action, or by the plaintiff, after answer, the nature of the defense.
“4. The name and residence of the person to be examined, and that the testimony of such a person is material and necessary for the party making such application, or the prosecution or defense of such action, and, at the option of the applicant, the place where he is sojourning, or where he regularly transacts business.
“5. If an action is pending that the person to be examined is about to depart from the State; or that he is so sick or infirm, as to afford reasonable ground to believe, that he will not be able to attend the trial. But this subdivision does not apply to a case, where the person to be examined is a party to the action.
“ 6.' If no action is pending, that the person expected to be the adverse party is of full age, and a resident of the State, or sojourning within the State ; or, if two or more persons are expected to be adverse parties, that they are all so resident or sojourning.
“7. Any other fact, necessary to show that the case comes within one of the last two sections, or relevant to the question specified in the next section.
Order. § 873. “The judge, to whom such an affidavit is presented, must grant an order for the examination, if an action is pending; if no action is pending he must grant it, if there is reasonable ground to believe that an action will be brought, as stated in the affidavit; otherwise he must dismiss the application. The order must require the party or person to be examined to appear before the judge, or before a referee named in the order, for the purpose of taking the examination, at a time and place therein specified. The order must also direct the time of service of a copy thereof; which must be made within the State, not more than twenty, nor less than five days, before the time fixed for the examination, unless special circumstances,, making a diSerent time of service necessary, are shown in the affidavit, and that fact is recited in the order.
Punishment. § 874. 1 ‘ If the party or person so served fails to. obey the order, his attendance maybe compelled, and he may be punished, in like manner, and the proceedings thereon are the same,, as. if he failed to obey a subpoena, issued from the court, in which the action is pending; or, if no action is pending, from the court of which the judge is a member.”

The subject of witness fees is not regulated by the' new Code so far as yet enacted.

Service on attorney, &c. § 875. “A copy of the order, and of the affidavit upon which it was granted, must be served upon the attorney for each party to the action, who is required thereby to appear, in like manner as a paper in the action; or, if a party has not appeared in the action, they must be served upon him, as directed by the order. If no action is pending, they must be personally served upon each of the persons, named therein as expected adverse parties.

Taking the deposition. § 876. “Upon proof,, by affidavit, that service of a copy of the order and of the affidavit has been duly made, as directed in the order, the judge or the referee must proceed to take the deposition of the witness, at the time and place specified in the order. He may, from time to time, adjourn the examination to another day, and to another place, within the same county.” 
      
      Present, Daly, Ch. J., and J. F. Daly and Larremore, JJ.
     