bond, so far as they are not reimbursed by the costs, that may be recovered.

Second. To pay to the creditor, at whose suit the goods were attached or taken in execution, the sum, if any, recovered by him in that suit, or so much thereof as shall remain unpaid, with interest therefor, at the rate of twelve per cent. by the year, for such time, if any, as the money shall have been withheld from the creditor, or the service of his execution delayed by reason of the replevin; and,

Third. If the attaching creditor shall not recover judgment, in the suit in which the attachment was made, or if any balance shall remain of the moneys, so recovered by the officer, after paying what is due to the creditor, as before provided, such balance, or the whole amount, as the case may be, shall be applied and disposed of in the same manner as would and ought to have been done with the surplus, if any, of the proceeds of sale, in case the same goods had been sold on execution.

SECT. 22. All sums received by such creditor from the proceeds of the sale of any goods, that had been attached or taken in execution, and which are afterwards returned, and all sums that are received for the value of such goods that are not returned, and also all sums recovered from the officer, for the insufficiency of the sureties in the bond, shall be applied towards the discharge of the judgment recovered by the creditor, and all sums received as interest or damages, for the delay of his execution, shall be retained to his own use, and shall not go in discharge of the judgment, any further, than to discharge the interest on the same, for the time for which interest was received.

SECT. 23. If it shall appear, upon the default of the defendant, or upon trial, that the goods were unlawfully taken or attached, or unlawfully detained by the defendant, the plaintiff shall have judgment for his damages, caused thereby, and for his costs of suit.

SECT. 24. If the goods, which are replevied, had been attached, they shall, in case of a judgment for a return, be held liable to the attachment until final judgment in the suit in which they were attached, and for thirty days thereafter, in order to their being taken in execution; and if final judgment shall be rendered before the return of the goods, or if the goods, when replevied, were seized and held on execution, they shall be held subject to the same attachment or seizure for thirty days after the return, in order that the execution may be served thereon or the service thereof completed, in like manner as it might have been, if the goods had not been replevied.

SECT. 25. If the officer, to whom the writ of return is committed, shall not be able to find the goods that were replevied, so as to deliver them to the defendant, he shall make a return of that fact upon the writ of return, and the defendant shall thereupon be entitled to a writ of reprisal, to be awarded and issued, upon his motion, by the court in which the judgment was rendered, to take the goods and chattels of the plaintiff, to be held and disposed of as on a writ of execution.

SECT. 26. The writ of return and the writ of reprisal, in all

actions of replevin, shall be substantially in the form prescribed by law.

SECT. 27. The foregoing provisions shall not preclude the defendant from resorting to his remedy on the replevin bond, or to his remedy against the officer for the insufficiency of the sureties in the bond, to recover the value of the goods, together with the loss or damage caused by the replevin thereof, notwithstanding he may have endeavored to recover the same by the writs of return and reprisal, as before provided.

SECT. 28. No action shall be maintained against any person, as surety in a replevin bond, except bonds executed agreeably to the provisions of the ninth section of this chapter, unless the writ be served on him within one year after the final judgment in the action of replevin, or if the action shall not be entered by the plaintiff, and the defendant shall not obtain judgment, upon a complaint, such writ against the surety may be served on him within one year after the end of the term at which the action of replevin ought to have been entered, and not afterwards.

SECT. 29. No writ of replevin shall be directed to, or served by, any person other than a proper officer, authorized by law to serve the same.

CHAPTER 34.

DEPOSITIONS AND WITNESSES.

COMPILED FROM

Chap. 31 of the Revised Statutes, pp. 203-207.

9. Justice to swear witness, certify and super- 21. Inhabitants of towns, &c. competent wit

scribe deposition.

10. Agent or attorney not to write deposition. 11. Deposition may be taken agreeably to the laws of the state, where taken.

12. Justice or other officer, out of the state, may take deposition.

13. Ex parte deposition to be filed.

nesses.

22. Stockholders in railroad corporations com-
petent witnesses.

23. Witnesses in criminal causes may be sum-
moned, on application of respondent.
24. Persons wishing to perpetuate testimony of
witness, may apply to judge of county

SECTION

court, &c.

25. Judge to give notice, by publication, &c. 26. Judge to take and seal up depositions.

27. Judge may issue commission, to take testi-
mony out of the state.

28. Powers and duty of such commissioner.
29. Depositions, &c. to be filed with county

SECTION

clerk-clerk to give copies-depositions considered as evidence.

30. Objection to competency of witness may be made when deposition is offered.

31. Parties concerned may take copies at any time.

SECTION 1. Any deposition taken for either of the reasons, and in the manner hereafter provided, shall be admitted as evidence in any civil cause, for which it shall be taken. (Sec. 1 of R. S.)

SECT. 2. Any justice may take the deposition of a witness out of court,

First. When such witness shall reside more than thirty miles from the place of trial;

Second. When he is going out of the state, not to return before the time of trial;

Third. When, by reason of age, sickness, or other bodily infirmity, he is rendered incapable of travelling and appearing at court;

Fourth.

When he shall reside out of this state; and

Fifth. When he is confined in any jail, or the liberties thereof, and cannot attend the trial without escaping therefrom. (Sec. 2 of R. S.)

SECT. 3. Notaries public and masters in chancery shall have the same power to take depositions that justices by law now have ; ; and all depositions taken by a notary public or a master in chancery, agreeably to law, shall be admitted on the trial of any civil cause, in any court of law. (Sec. 3 of No. 53 of 1850.)

SECT. 4. Any person, wishing to take the deposition of a witness out of court, shall, if the adverse party resides within thirty miles of the place of caption, either cause personal notice to be given, by the justice taking such deposition, to the adverse party, or a citation, signed by a justice, to be served on the adverse party in the same manner as a writ of summons, which notice or citation shall state the time and place of taking such deposition, and shall be given, or served, so that the party may have a reasonable time to appear and be present at the taking of such deposition. (Sec. 3 of R. S.)

SECT. 5. No deposition shall be used in the trial of any civil cause, or before any committee of elections, as evidence, unless the justice before whom it is taken shall have appeared at the place, and within two hours of the time mentioned in the notice given to the adverse party. (No. 14 of 1842.)

SECT. 6. The justice, when called upon to take a deposition out of court, shall, if requested by the person calling upon him, issue a subpoena for the appearance of the witness before him, in the usual form. (Sec. 4 of R. S.)

SECT. 7. If any person, on whom a subpœna, as aforesaid, shall be served, having been tendered his legal fees, shall refuse or neglect to appear at the time and place therein mentioned, before the justice, issuing the same, to make his deposition, such justice may

issue an attachment to compel the appearance of such person. (Sec. 5 of R. S.)

SECT. 8. If, upon the appearance of any witness, required to make his deposition, before a justice, the legal fees of such witness having been tendered to him, he shall refuse to make his deposition, such justice, by his warrant, shall forthwith cause such witness to be committed to jail, there to remain until he shall make his deposition as required, and discharge the costs of commitment. (Sec. 6 of R. S.)

SECT. 9. Every witness, making a deposition, shall be carefully examined; and, being sworn, the justice shall certify such deposition in the form prescribed by law, and shall seal up and deliver the same to the person, at whose request it was taken, superscribed in the following words: "The within deposition of A B was taken and sealed up by C D, justice of the peace." (Sec. 7 of R. S.)

SECT. 10. No agent, attorney, or person interested in any cause, shall write or draw up the deposition of any witness, to be used in such cause; and any deposition, so written or drawn up, or returned to the clerk of the court unsealed, or with the seal broken, shall be rejected by the court. (Sec. 8 of R. S.)

SECT. 11. All depositions of witnesses, living without this state, if taken agreeably to the provisions of this chapter, or the laws of the state in which they shall be taken, shall be allowed in any court. in this state. (Sec. 9 of R. S.)

SECT. 12. Any justice or officer, authorized by the laws of the state in which he resides, to take affidavits or depositions to be used in the judicial tribunals of such state, shall have the same power to take a deposition, that is given in this chapter to a justice. (Sec. 10 of R. S.)

SECT. 13. No deposition, taken without notice to the adverse party, shall be read as evidence in any supreme or county court, unless the same shall have been filed in the office of the clerk of such court, and opened by such clerk and remained subject to the inspection of the adverse party, at least thirty days previous to the session of the court in which such deposition is offered as evidence. (Sec. 11 of R. S.)

SECT. 14. If any person upon whom a subpoena shall be legally served, summoning him to appear and make his deposition in any case, in which the magistrate, before whom he is so summoned to appear, is empowered to take his deposition, the legal fees having been tendered to such witness, does not appear according to the tenor of said subpoena, having no lawful or reasonable excuse therefor, he shall forfeit the sum of ten dollars, and shall pay to the party, in whose behalf he shall be so summoned, all just damages; which forfeiture and damages shall be recovered by said party before any court proper to try the same.

Provided, that no person shall be compelled to travel more than ten miles to give a deposition. (No. 24 of 1844.)

SECT. 15. If any person, upon whom a subpoena shall be legally served, summoning him to appear and testify, in any cause or matter pending in any court in this state, or before auditors, referees, arbitrators or commissioners, there having been tendered to him so

much money for his travel and one day's attendance, as is, or shall be allowed by law, does not appear, according to the tenor of such subpoena, having no lawful or reasonable excuse therefor, he shall forfeit the sum of ten dollars, and pay to the party, in whose behalf he shall be subpoenaed, all just damages, which forfeiture and damages shall be recovered by the party aggrieved, before any court proper to try the same. (Sec. 12 of R. S.)

SECT. 16. When any party, in a cause pending before any court, shall make it appear to such court that he has caused a subpoena to be duly served on any witness to appear and testify in such cause, and has tendered so much money for his travel and attendance as is by law directed, and such witness has neglected to appear, such court may issue an attachment to compel the attendance of such witness. (Sec. 13 of R. S.)

SECT. 17. Any party or witness, in any cause pending before any of the courts in this state, or before auditors, or referees, shall not be liable to be arrested, imprisoned or detained by virtue of any civil process whatever, while going to, attending at, or returning from such court or the trial of such cause. (Sec. 14 of R. S.)

SECT. 18. It shall be the duty of any party, producing a witness in the supreme or county court, to procure a certificate signed and sworn to by such witness, specifying the number of miles from his usual place of abode to the place of trial, and the number of days he attended as a witness, before the travel and attendance of such witness shall be allowed such party in his bill of cost. (Sec. 15 of R. S.)

SECT. 19. When a certificate shall issue from the clerk of any judicial court, in any other of the United States, certifying that there is a criminal cause pending in such court, and that a person, residing in this state, is supposed to be a material witness in such cause in behalf of such state or the person accused, any justice in the county in which such witness resides, on application made to him, shall, on the back of such certificate, or paper annexed thereto, issue a summons requiring such witness to appear at the court in which such cause is pending and testify. (Sec. 16 of R. S.)

SECT. 20. If any person, so summoned and having tendered to him a sum equal to six cents for every mile's travel from the place of such witness' abode to and from the place where the trial may be, and one dollar at the end of every day for such witness' attendance at the place of trial, and such witness, having no reasonable excuse to the contrary, shall neglect to appear and testify, he shall forfeit and pay three hundred dollars to any person, though not an inhabitant of this state, who may sue for the same. (Sec. 17 of R. S.)

SECT. 21. The inhabitants of any county, town, city, borough, village, or school district, shall, unless otherwise disqualified, be admitted as competent witnesses in any cause wherein such county, town, city, borough, village, or school district is a party, or interested. (Sec. 18 of R. S.)

SECT. 22. The stockholders in any railroad corporation shall, unless otherwise disqualified, be admitted as competent witnesses in