
    
      In re Simon Abeles, for a Writ of Habeas Corpus.
    
    January Term, 1874.
    1. Depositions: Right to Compel. A party to an action can compel a witness to give liis deposition in the case prior to the trial, even though such witness resides in'the county in which the action is pending.
    2. -. The Code provides that the deposition of a witness may be used when the witness is absent from the county at the time of the trial, or when from age, infirmity, or imprisonment, the witness is unable to attend court, or is dead. Given a right to use a deposition under the contingencies named, gives the right to prepare for those contingencies.
    3. -. The giving of testimony, whether on trial, or by deposition, is not a privilege of the witness, but a right of the party.
    
      4. -: Power of Notary: Contempt. Where a witness, duly subpoenaed to testify in a cause before a notary public, by giving his deposition, refuses to testify, he may be committed by the notary for contempt for such refusal; and if he petition for a writ of habeas corpus, to be discharged from custody, the writ will be denied, and the petitioner remanded to custody.
    Petition for writ of habeas corpus.
    
    
      A civil action was pending in the district court of Leavenworth county, between the German Savings Bank of Leavenworth, as plaintiff, and Simon Abeles, as defendant. The plaintiff served notice on Abeles that depositions would be taken before G. F. W. Gassier, a notary public, at his office, on the twentieth of January, 1874, and said Abeles was duly subpoenaed to attend and testify at such time and place. Abeles attended, but refused to testify, claiming that as he resided in the county of Leavenworth, where the action was pending, the plaintiff had no right to take his deposition. The notary public held that such refusal was a contempt, *and committed Abeles to the custody of the sheriff, as keeper of the common jail, for such contempt. Thereupon Abeles presented his petition to this court, praying for a writ of habeas cor pits, directed to Wm. H. Bond, sheriff of Leavenworth county, requiring him to bring the petitioner before the court, and that he be discharged from custody. This motion for the writ was heard on the twenty-fourth of January, 1874.
    
      English é Stillings, for petitioner.
    
      F. P. Fitzioilliam, contra.
    
   Brewer, J.

The single question in this case is whether a party to an action can compel a witness, residing in the county where the action is pending, to give his deposition prior to the trial ? or must he, if he desires his testimony, compel his personal attendance at the trial by subpoena and attachment ? That the witness whose testimony is sought is the adverse party does not affect the question, for, by section 321 of the Civil Code, either party can compel the adverse party “at the trial, or by deposition, to testify as a witness, in the same manner, and subject to the same rules, as other witnesses.” By section 346 of the Code the deposition of a witness may be used when the witness is absent from the county at the time of trial, or when from age, infirmity, or imprisonment, the witness is unable to attend court, or is dead. Giving the right to use a deposition under the contingencies named gives the right to prepare for those contingencies. It cannot, of course, have been contemplated that the contingency must exist before the deposition can be taken; for in one of the cases at least the happening of the contingency would destroy the power to obtain the testimony. If the deposition of a witness can be used in case of his death, the party must have a right to take that deposilion beforehand. So of the other contingencies named in the statute. Now the giving of testimony, whether on the trial or by deposition, is not a privilege of *the witness, but a right of the party. He need not solicit; he can compel. It seems to us, therefore, that under our statutes a witness may be compelled to give his deposition, although he reside in the county where the action is pending. It is said this power is liable to abuse, and that a witness may be compelled to givS repeated depositions, and still be present at the trial. Courts will see that this power is not abused, or the time of a witness unnecessarily taken. It is also said that large amounts of costs will be accumulated. This will not injure the adverse party, for a party taking depositions which he does not use must himself pay their cost. It is also said that this permits one to go on a “fishing expedition” to ascertain his adversary’s testimony. This is an equal right of both parties, and justice will not be apt to suffer if each party knows fully beforehand his adversary’s testimony.

The petition for the writ of habeas corpus will be denied, and the petitioner remanded to the custody of the sheriff.

(All the justices concurring.)  