The Court found that at the time the action was commenced the plaintiffs had not filed or published the certificate of partnership required by the sections above referred to, but that on the 7th of December, 1882, and prior to the day of the trial, the plaintiffs did file a certificate in due form, and commenced the publication thereof in a weekly newspaper, and that publication thereof had been made once before the trial; and as conclusion of law the Court held that the plaintiffs were entitled to recover. This was error. Section 2468 Civil Code declares that persons transacting business in this State, under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, shall not maintain any action upon or on account of any contracts or transactions had in their partnership name, in any Court of this State, until they have first filed the certificate and made the publication required by Section 2466. The certificate must state the names in full of all the members of the partnership, and their places of residence, and must be published, once a week for four successive weeks, in a newspaper. The commencement of an action is a part of the maintaining it. In this case it was incumbent on the plaintiffs to have shown that the certificate had been filed, and published once a week for four successive weeks, before the commencement of the action. We find the law very plainly written, and must hold accordingly. The judgment is reversed, and the cause is remanded, with instructions to render judgment for the defendant; such judgment, however, not to be a bar to another action if plaintiff shall be advised to commence it after full publication. We concur: Sharpstein, J., Thornton, J. IN BANK. [Filed August 22, 1883.] THE PEOPLE, EX REL. THOMAS H. HIX, The questions involved in this case are decided in The People ex rel. Henry Stoddard v. A. B. Williams, and in accordance therewith the judgment herein is affirmed. IN BANK. [Filed August 29, 1883.] No. 10,811. PEOPLE, RESPONDENT, v. SMITH, APPELLANT. CRIMINAL LAW-ERRONEOUS CHARGE. Appeal from Superior Court, San Francisco. Attorney-General for respondent. H. Eickhoff and G. Strauss for appellant. THORNTON, J., delivered the opinion of the Court: 66 While the portions of the charge referred to on the argument as contravening the law would be erroneous standing alone and not qualified by other portions of the charge, yet, as the jury were told by the Court that they were the sole judges of the facts and the value of the testimony," we cannot hold that there was any error in the charge, for which the judgment should be reversed. Taking the whole charge together, we cannot perceive that the jury were misdirected or their functions in any manner invaded by the Court. The Court did not in its comments on the credit of the witnesses go beyond what is allowable, when the jury were at the same time directed that they were the sole judges of the facts and of the value of the testimony. Judgment affirmed. We concur: Ross, J., McKee, J., Myrick, J. IN BANK. [Filed August 17, 1883.] No. 10,830. PEOPLE, RESPONDENT, v. MITCHELL, APPELLANT. DEPOSITION EVIDENCE. A deposition was read in evidence, against defendant's objection. In taking the deposition, the officers, so far as it appeared on the face thereof, wholly failed to comply with Sections 882 and 869 of the Penal Code. Held, for the informalities and irregularities apparent on its face the deposition was inadmissible. ID. Taking the testimony of a witness on behalf of the people in a criminal case by deposition, is an exception to the rule which entitles the defendant in a criminal action to be confronted with the witness against him in the presence of the Court; and every substantial requirement of the law which authorizes it must be observed. Appeal from Superior Court, San Francisco. Attorney-General for respondent. J. D. Whaley for appellant. MCKEE, J., delivered the opinion of the Court: On the trial of this case, the Court below permitted the District Attorney, over the exception of the defendant's counsel, to read in evidence against the defendant a deposition of James Morris-the complaining witness in the case; and the ruling of the Court in that regard is the principal assignment of error. The deposition purported to have been taken under Section 882 of the Penal Code. According to the provisions of that section the right to take the deposition of a witness, on behalf of the people, in a criminal case, arises out of the fact that the witness is unable to procure sureties for his appearance on the trial; and that fact must be satisfactorily established by the examination on oath of the witness himself or of some other person. When the fact has been judicially ascertained, the right to take the deposition of the witness may be put in motion. But the examination of the witness must be had in the presence of the defendant, or after due notice to him, and "must be conducted in the same manner as the examination of a witness before a committing magistrate is required by the Penal Code to be conducted." That is to say, the deposition must contain the name of the witness, his place of residence, and his business, the questions put to him and his answers, together with the objections, if any made, and the grounds of the objections to any of the questions or answers and the rulings thereon; and when the examination is concluded, it must be signed by the witness, or his reasons for refusing to sign stated, and the presiding Judge before whom it has been taken must sign and certify to it, if it has been reduced to writing by him or under his direction, unless the examination has been taken down by a phonographic reporter by order of the Judge, in which case, the reporter's transcript, when written out in long-hand and certified by him as being a correct statement of the testimony and proceedings, shall be received as prima facie correct. (Sec. 869 Pen. Čode.) But the testimony of the witness is only taken conditionally. (Secs. 686, 869, id.), and cannot be read against the defendant until it has been "satisfactorily shown to the Court" that the witness is dead or insane, or cannot with due diligence be found within the State. (Sec. 686, id.) In taking the deposition, the officers, so far as it appears on the face of the deposition, wholly failed to observe the requirements of Section 869, supra, in putting the right in motion, and of Section 869, in the manner of conducting the examination. The fact that the witness was unable to procure sureties for his appearance at the trial did not appear by examination on oath of the witness, or of any other person. The deposition contained the recital that it appears from the statement of William Fitzmaurice, that the witness, James Morris, was detained in jail, and was unable to procure sureties." Nowhere does it appear that the statement was made on oath. It may have been a mere verbal statement, upon which no action could have been taken. Besides, the deposition does not show that it was read over to the witness, or that he signed it after acknowledging it to be correct, or that the presiding Judge or magistrate before whom it was taken, certified to it, as he was required to do under the Code, to entitle it to be read in evidence against the defendant. For the informalities and irregularities apparent on its face, the deposition was therefore inadmissible. Taking the testimony of a witness on behalf of the people, in a criminal case, by deposition, is an exception to the rule which entitles the defendant in a criminal action to be confronted with the witnesses against him in the presence of the Court; and every substantial requirement of the law which authorizes it must be observed. Any real departure from the course prescribed for the taking of the deposition renders the deposition itself objectionable. (People v. Morine, 54 Cal. 575; Williams v. Chadbourne, 6 id. 559; People v. Chung Ah Chune, 7 Pac. L. J. 700.) Judgment reversed and cause remanded for a new trial. We concur: Sharpstein, J., Ross, J., McKinstry, J., Myrick, J., Thornton, J. DEPARTMENT No. 1. [Filed August 28, 1883.] PEOPLE, RESPONDENT, v. PERAZZO, APPELLANT. PERJURY-FALSE SWEARING MUST BE MATERIAL TO THE ISSUE. Where the false swearing charged in an indictment or information was not material to any issue involved in the action on the trial of which it is alleged to have been committed, it could not amount to perjury. ID. Case stated where the false swearing was not material to any issue in volved. Appeal from Superior Court, San Francisco. C. B. Darwin and L. Quint for appellant. Ross, J., delivered the opinion of the Court: The allegations in the information upon which the defendant was convicted are that on the trial of a certain action entitled Sherwood and Meyers v. Desmond it became and was material to its determination to know whether the defendant, Perazzo, had, on or about the ninth day of September, 1880, or at any other time, loaned to M. Grossini and John Tiscornia the sum of three thousand dollars in United States gold coin; and that Perazzo on said trial testified that he did, on or about the ninth day of September, 1880, loan to the said Grossini and Tiscornia the sum of three thousand dollars in such coin, whereas in truth and in fact he did not, on or about the ninth day of September, 1880, or at any other time, make such loan or any other loan of money to the said Grossini and Tiscornia. It is plain that the negation of the pleader cannot add to the testimony assigned as false, which is that defendant swore falsely in testifying that he loaned to Grossini and Tiscornia three thousand dollars in United States gold coin on or about the ninth day of September, 1880. If such testimony could not have been material to any issue involved in the action entitled Sherwood and Meyers v. Desmond, its falsity could not amount to perjury in law, because to constitute perjury the false testimony must be upon a matter material to the issue involved in the inquiry. Sherwood and Meyers v. Desmond was an action of claim and delivery brought for the recovery of certain articles of personal property. Upon the trial of that action the plaintiffs deraigned title through a sale under execution based on a judgment rendered in an action entitled Perazzo v. Grossini and Tiscornia, which last-named action was commenced in August, 1880, and was brought upon a promissory note for $4,000, alleged to have been executed to Perazzo by Grossini and Tiscornia. The defendant to the suit of Sherwood and Meyers v. Desmond sought to avoid the judgment in Perazzo v. Grossini and Tiscornia and the sale made thereunder, by showing that that action was founded upon a simulated note executed for the purpose of withdrawing the property of the makers from the reach of their creditors by means of the judgment and execution sale. From this statement it will be seen that in no aspect of the case of Sherwood and Meyers v. Desmond, could it have been material to inquire whether Perazzo did or did |