TITLE 3. times be open to the inspection of the parties, who shall be entitled to copies of such parts thereof as they may require, on payment of the fees allowed by law. &c. evidence. Depositions, $ 23. The examinations and depositions taken under a commission issued, executed and returned, as herein directed, or an exemplification thereof when the originals are filed in any other county than that in which the cause shall be tried, may be offered and used in Objections to evidence on the trial of the cause, by either party; and every objection to the competency or credibility of a witness so examined, or to the competency or relevancy of any question put to him, or of any answer given by him, may be made in the same manner, and with the like effect, as if such witness were personally examined at such trial.15 witnesses, &c. Commissions to issue after judgment. $24. If an interlocutory judgment shall have been obtained in any nterlocutory action, a commission may be awarded on the application of the plaintiff, in the like cases, and in the same manner, as if an issue of fact had been joined; and the depositions taken thereon may be used in evidence on any proceeding to assess the plaintiff's damages, with the like effect as herein provided in case of trial. Authentication of affi or states, &c. ARTICLE THIRD. Of Affidavits taken, and other Judicial Proceedings had in other SEC. 25. Affidavits in other states, how authenticated. 26. Records and proceedings of courts in foreign countries. $25. In cases where by law the affidavit of any person residing davits in oth- in another state of the United States, or in any foreign country, is required, or may be received in judicial proceedings in this state, to entitle the same to be read, it must be authenticated as follows: Records, &c. of foreign courts. 1. It must be certified by some judge of a court having a seal, to have been subscribed and taken before him, specifying the time and place where taken: 2. The genuineness of the signature of such judge, the existence of the court, and the fact that such judge is a member thereof, must be certified by the clerk of the court, under the seal thereof. $ 26. The records and judicial proceedings of any court in a forreign country, shall be admitted in evidence in the courts of this state, upon being authenticated as follows: 1. By the attestation of the clerk of such court, with the seal of such court annexed, or of the officer in whose custody such records are legally kept, with the seal of his office annexed: 2. By a certificate of the chief justice or presiding magistrate of such court, that the person attesting such record is the clerk of the (15) IR. L. p. 519, § 11. court, or that he is the officer in whose custody such record is required by law to be kept; and in either case, that the signature of such person is genuine: and, 3. By the certificate of the secretary of state, or other officer of the government under whose authority such court is held, having the custody of the great or principal seal of such government, purporting that such court is duly constituted, specifying generally the nature of its jurisdiction, and verifying the signature of the clerk or other officer having the custody of such record, and also verifying the signature of the chief justice or presiding magistrate. of ART. 4. $27. Copies of such records and proceedings, in the courts of a Copine there foreign country, may also be admitted in evidence, upon due proof, 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of such original :. 2. That such original was in the custody of the clerk of the court, or other officer legally having charge of the same: and, 3. That such copy is duly attested by a seal, which shall be proved to be the seal of the court in which such record or proceeding shall be. of preceding $28. The preceding sections shall not prevent the proof of any Construction record or judicial proceeding of the courts, of any foreign country, ac- sections. cording to the rules of the common law, in any other manner than that herein directed, no hall they be construed as declaring the effect of any record or judicial proceeding, authenticated as therein prescribed. [It may be useful to state, that by the act of Congress of the 26th of May, 1790, (Laws Mode of auU. S. Bioren & Duane's edition, vol. 2. p. 102,) the records and judicial proceedings of the thenticating courts of any state in the United States, are proved or entitled to be admitted in the courts records, &c. of any other state, upon being authenticated by the attestation of the clerk and the seal of of one state, the court annexed if there be a seal, together with a certificate of the judge, chief justice to be used in or presiding magistrate, as the case may be, that the said attestation is in due form. Such another states. records and judicial proceedings, authenticated as aforesaid, have the same faith and credit given to them in every court of the state where they may be offered, as they have by law or usage in the courts of the state from which such records are taken.] ARTICLE FOURTH. Of Depositions taken in this State, to be used in Courts of other SEC. 29. Parties in suits in other states, may obtain testimony here. 30. Summons to witness to be examined, when to issue, &c. 31. Contents of summons; place of attendance. 32. Proof required for summons, when no commissioner. how to be $29. Any party to a suit depending in any court of any other Testimony state of the United States, may obtain the testimony of any witness obtained, &c. residing in this state, to be used in such suit. witness. $30. If a commission to take such testimony shall have issued Summons to from the court in which such suit is pending, on producing the same to a justice of the supreme court, circuit judge, supreme court commissioner, or any judge of the county courts of any county, and on TITLE 3. due proof being made to such officer that the testimony of any witness residing in this state, is material to the party desiring the same, such officer shall issue a summons to such witness, requiring him to appear before the commissioners named in such commission, to testify in such suit.16 Its contents. ed for sum mons, when $31. Such summons shall specify the time and place at which such witness is required to attend; the place shall be within the county in which such witness resides, or within forty miles of his residence, if out of his county. Proof requir- $ 32. If a suit be pending in any court of any other state of the United States, and it shall satisfactorily appear by affidavit to any of ficer named in the preceding thirtieth section, no commis- cout served When testi mony may be Proof to be 1. That any person residing in this state is a material witness for either party to such suit: 2. That no commission to take the testimony of such witness has been issued and, 3. That according to the course and practice of the court in which such suit is pending, the deposition of a witness taken without the presence or consent of both parties, will be received on the trial or hearing of such suit: Such officer shall issue his summons, requiring such witness to appear before him at a place within the county in which such witness resides, at some reasonable time, to testify in such suit. ARTICLE FIFTH. Of Proceedings to perpetuate Testimony. SEC. 33. Cases in which testimony may be taken. 34. Proof necessary to obtain order to examine witness. 35. Summons to witness. 36. When officer to proceed to take testimony. 37. How to be taken; when and where to be filed with other papers. 38. Original affidavits, &c. how far evidence. 39. Cases in which depositions may be evidence. 40. Effect thereof; objections to witness, questions, &c. 41. Another officer may take examination of witness. $ 33. Any person who is a party to a suit pending in any court of this state, or who expects to be a party in any suit about to be commenced, may cause the testimony of any witness material to him in the prosecution or defence of such suit, to be taken conditionally, and to be perpetuated.17 any $34. Upon producing to any justice of the supreme court, or to officer authorised to perform the duties of such justice at chambers, or to the first judge of the county courts of any county, or to a master in chancery, due proof by affidavit, 1. That the applicant is a party to a suit actually pending in some court of record in this state, or that such applicant has good reason to expect to be made a party to a suit in such court of record: and, (16) 1 R. L. p. 49. (17) Ib. p. 455, § 1. 2. That the testimony of any witness within this state, is material ART. 5. and necessary to the prosecution or defence of such suit: and, 3. If such suit be not actually commenced, that the party expect ed to be adverse to the applicant, resides within this state and is of full age: Such officer shall appoint a place within the county where such witness resides, and a time not less than fourteen days from the date of such order, for the examination of such witness. 18 witness. $35. Upon the application of the party desiring such examination, Summons to such officer shall issue a summons to the witness designated in the original affidavit, requiring him to appear and testify at the time and place appointed. when to be $36. After satisfactory evidence shall be given to such officer, that Testimony the order directing such examination has been duly served on the taken. party to such suit, if one be pending; or on the persons named in the original affidavit as expected parties, if no suit be pending; at least ten days before the time therein appointed for such examination, he shall proceed on the day so appointed, and on such other days to which the matter shall be from time to time adjourned, as may be necessary, to take the deposition of such witness, conditionally.18 taken, &c. $37. The officer taking such deposition, shall insert therein every How to be answer or declaration of the witness examined, which either party shall require to be included therein. The deposition, when completed, shall be carefully read to, and subscribed by, the witness; shall be certified by the officer taking the same; and within ten days thereafter, shall be filed in the office of the clerk of the county in which To be filed the same was taken, together with the original order for the examination of the witness, and the affidavits on which the same was founded, and those proving the service of such order. 19 &c. davits evi. denco. sitions may evidence. $38. The original affidavits filed with such deposition, or a certi- Original affified copy thereof, shall be presumptive evidence of the facts therein den contained, to show a compliance with the provisions of this Article. $39. In case a trial shall be had between the persons named in when depothe original affidavit as parties, or named therein as expected parties, be read in or between any parties claiming under such persons or either of them, upon due proof of the death or insanity of the witness examined pursuant to the foregoing provisions, or of the inability of such witness to attend such trial by reason of old age, sickness, or settled infirmity, the deposition of such witness, or a certified copy thereof, may be given in evidence by either party.19 objections to $ 40. The depositions so taken and read in evidence, shall have the Their effect; same effect, and no other, as the oral testimony of the witness would witness, &c. have, if given on such trial; and every objection to the competency or (18) 1 R. L. p. 455, § 1. (19) Ib. § 3. TITLES. credibility of such witness, or to the relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if such witness were personally examined on such trial.20 Other officer may be sub atituted. Mode of serving subpœnas. $41. Any officer authorised to take the examination of a witness according to the provisions of this Article, to whom application may be made for that purpose, may order such examination to be had before any other officer to whom such application might have been originally made, residing in the same county with the witness to be examined; and such officer shall proceed in the premises in the same manner, and with the like power, as if the order for examination had been made by him.21 ARTICLE SIXTH. Of Witnesses, their Privileges, and compelling their Attendance. SEC. 42. Subpoenas issued by courts, how to be served. 49. To whom to be directed, and how to be executed. 51. Witnesses subpoenaed, exempt from arrest. 52 & 53. Officers, &c. who may discharge witness arrested. 54. Arrests void; penalties for making. 55. Affidavit to be made, if required; its contents and effect. $42. The service of a subpœna issued out of any court, to compel the attendance of any witness, shall be made as follows: 1. The original writ under the seal of the court issuing the same, shall be exhibited to the witness: 2. A copy of such writ, or a ticket containing its substance, shall be delivered to the witness: 3. The fees allowed by law to such witness for travelling to and returning from the place where he is required to attend, and the fees allowed for one day's attendance, shall be paid or tendered to such witness. 22 Penalties for S43. Every person who shall be duly subpoenaed to attend as a disobedience witness, any court within this state; or to attend any officer of any court of record empowered to receive evidence, or any commissioner appointed by such court to take testimony; or any referees appointed by such court to hear any cause or matter, shall be bound to attend, according to the command of such subpoena; and for every failure so to attend, without a reasonable excuse, shall be deemed guilty of a contempt of the court out of which such subpoena issued, shall be responsible in the proper action to the aggrieved party for the loss and hindrance sustained by such failure, and for all other damages sustained (20) 1 R. L. p. 455, § 3. (21) Laws of 1815, p. 151. (22) 1 R. L. p. 524, § 20. |