public, justices of the peace, registers of deeds, court commissioners and county auditors, are authorized to take the acknowledgments of deeds and other instruments in writing, within their several and respective jurisdictions; and whenever any officer having or using a seal of office takes an acknowledgment, he shall affix his seal to the instrument so acknowledged; and all instruments heretofore acknowledged before any of the officials named are hereby legalized, and declared as valid as though such officials had, at the time of taking such acknowledgments, been so authorized to do. (As amended 1876, c. 40, § 1.) See ante, §§ 5 and 6. § 12. (SEC. 9.) Depositions, who may take and certify. Any person qualified to take acknowledgments, as aforesaid, may take and certify depositions to be used in the courts of this state, except when otherwise expressly provided. § 13. (SEC. 10.) Commissioners in other states-appointment-powers. Such commissioners as the governor shall appoint in any of the United States, or territories of the United States, to take the acknowledgment of deeds or other instruments in writing to be used in this state, shall hold their office during the pleasure of the governor, and shall have power to take the acknowledgment and proofs of the execution of any deed or other conveyance or lease of any lands lying in this state, and of any contract, letter of attorney, or any other writing, under seal or not, to be used or recorded in this state. §14. (SEC. 11.) Same-acknowledgments taken by them. Such acknowledgment or proof, so taken according to the laws of this state, and certified to by any such commissioner under his seal of office, and annexed to or indorsed on such instrument, shall have the same power and effect as if the same had been made before any officer authorized to perform such acts in this state. § 15. (SEC. 12.) Same-may administer oaths and take depositions. Every commissioner appointed as before mentioned, shall have power to administer an oath which may be lawfully required in this state, to any person willing to take the same, and to take and duly certify all depositions to be used in any of the courts of this state, in conformity to the laws thereof, either on interrogatories proposed under a commission from any court of this state, or by consent of parties, or on legal notice given to the opposite party; and all such acts shall be as valid as if done and certified, according to law, by a proper officer in this state. § 16. (SEC. 13.) Same-oath and seal of commissioner. Every such commissioner, before performing any duty, or exercising any power, by virtue of his appointment, shall take and subscribe an oath or affirmation, before a judge or a clerk of one of the courts of record of the state in which such commissioner resides, well and faithfully to execute and perform all the duties of such commissioner, under and by virtue of the laws of the state of Minnesota; which oath, with a description or impression of his seal of office, shall be filed in the office of the secretary of this state. Who may affirm-oath to suit belief of 14. Court to ascertain capacity of infant witness, TAKING DEPOSITIONS WITHIN THE STATE. 65-66. 67. 15-21. Before whom-in what cases-appointment 68-71. and notice of time and place-service of notice on party, agent or attorney-on one of several parties-in what manner-waiver. 22-28. Oath of witness-examination-deposition to be written, signed, etc-to be certified and returned- when to be used-objections, when and how to be taken. 29-30. Use of deposition in second action-on appeal. 31. Witness compellable to give deposition, when. TAKING DEPOSITIONS OUT OF THE STATE. PROCEEDINGS TO PERPETUATE TESTIMONY OF 41-46. Application-contents and to whom made WITNESSES OUT OF THIS STATE. 47-52. Application for commission-statement to 72. 73-74. Affidavits of publication of notices of application to court-of notices of sale of real estate-filing-such affidavits and certified copies as evidence-affidavit of printer, etc. Requisites of certificate to official papersseal to be used-exception. Instruments may be acknowledged and made evidence. Deposit of instruments with register, etcfiling and indorsement-withdrawal from file-to be open to inspection. Certificate of officer that paper is not in his office. Certified copies of records and papers in public offices-in U. S. government offices. LOSS OF INSTRUMENTS AND PROCEEDINGS 75-77. THEREON. Evidence on question of loss-of conten's of lost bill or note-recovery thereon-bond to be given. JUSTICES' DOCKETS. ACCOUNT BOOKS-RECORDS - INSTRUMENTS— 78-80. 81. 82-87. Account books, prima facie evidence, when -ledger to be produced, when-entries by deceased person. Minutes of conviction and sentence. Docket of justice-transcript-how certified unwritten proceedings before justice-certificate of conviction before him-exemplification of justices' Judgment in another state. 88. Inspection of documents. 89. 90. Bills and notes-signatures presumed genuine. 91-92. Land-office receipts, certificates of entry, etc., evidence of title in fee. 93-94. Record and effect of U. S. patents and land-office receipts. 95. 96. be filed-notice and service-publication- 97. DEPOSITIONS TAKEN IN THIS STATE TO BE USED ELSEWHERE. Plats, etc., from U. S. land-offices-certificates of county surveyors. Conveyances, etc., the record thereof, and copies of record. Marriage certificates and the record thereof, Evidence of existence of partnership or corporation. CHARACTER, COMPETENCY AND EFFECT OF EV IDENCE. 99. Fact of marriage, how proved. 53. Witness may be compelled to attend, etc-be- 100-102. Evidence in prosecutions for counterfeitfore what officers. ing, etc., bank-notes, or U. S. treasurynotes, etc-in prosecutions for rape. PRINTED STATUTES, RECORDS, ETC., AND LAWS, 103-104. Confessions, when inadmissible-testiETC., OF OTHER STATES. TITLE 1 WITNESSES. § 1. Subpoenas for witnesses, when and by whom to be issued. Every clerk of a court of record and every justice of the peace may issue subpoenas for witnesses in all civil cases pending before the court, or before any magistrates, arbitrators, or other persons authorized to examine witnesses, and in all contests concerning lands before the register and receiver of any land-office in this state. § 2. Same-how served. Such subpoena may be served by any person, by exhibiting and reading it to the witness, or by giving him a copy thereof, or by leaving such copy at the place of his abode. § 3. Liability for disobedience to subpoena. If any person duly subpoenaed and obliged to attend as a witness fails to do so, without any reasonable excuse, he is liable to the aggrieved party for all damages occasioned by such failure, to be recovered in a civil action. § 4. Same-contempt. Such failure to attend as a witness, if the subpoena issues out of any court of record, is a contempt of the court, and may be punished by fine not exceeding twenty dollars. § 5. Attachment for delinquent witness. The court, in such case, may issue an attachment to bring such witness before it, to answer for the contempt, and also to testify as a witness in the action or proceeding in which he was subpoenaed. § 6. "Witness" defined. A witness is a person whose declaration under oath is received as evidence for any purpose, whether such declaration is made on oral examination, or by deposition or affidavit. § 7. Who may be witnesses. All persons, except as hereinafter provided, having the power and faculty to perceive, and make known their perceptions to others, may be witnesses; neither parties nor other persons who have an interest in the event of an action are excluded, nor those who have been convicted of crime, nor persons on account of their religious opinions or belief; although, in every case, the credibility of the witnesses may be drawn in question. And on the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offences, the person so charged shall, at his request, but not otherwise, be deemed a competent witness; nor shall the neglect or refusal to testify create any presumption against the defendant, nor shall such neglect be alluded to or commented upon by the prosecuting attorney or by the court. (As amended 1868, c. 70, 1.) 1 M. 181 (207); 4 M. 340 (438); 10 M. 277 (350); 14 M. 35, 105. §8. Conversations between party and deceased person, etc. It shall not be competent for any party to an action, or interested in the event thereof, to give evidence therein of or concerning any conversation with, or admission of, a deceased or insane party or person, relative to any matter at issue between the parties. (As amended 1877, c. 40, § 1.) 8 M. 310 (351); 12 M. 407; 18 M. 527; 21 M. 108; 22 M. 397. § 9. Who are not competent witnesses. The following persons are not competent to testify in any action or proceeding: First. Those who are of unsound mind, or intoxicated, at the time of their production for examination. Second-Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. $10. Privileged communications. There are particular relations in which it is the policy of the law to encourage confidence, and preserve it inviolate; therefore a person cannot be examined as a witness in the following cases: First. Husband and wife. A husband cannot be examined for or against his wite, without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other. 4 M. 251 (335). Second. Attorneys. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon, in the course of professional duty. Third. Priests. A clergyman or priest cannot, without the consent of the person making the confession, be examined as to the confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs. Fourth. Physicians. A regular physician or surgeon cannot, without the consent of his patient, be examined, in a civil action, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient. 19 M. 523. Fifth. Public officers. A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure. § 11. Witness may affirm, when. Every person who declares that he has conscientious scruples against taking an oath, or swearing in any form, shall be permitted to make his solemn declaration or affirmation. § 12. Mode of administering oath to suit witness. Whenever the court before which any person is offered as a witness is satisfied that such person has any peculiar mode of swearing, which is more solemn and obligatory, in the opinion of such person, than the usual mode, the court may, in its discretion, adopt such mode of swearing such person. § 13. Witness to be sworn according to his religion. Every person believing in any other than the christian religion shall be sworn according to the peculiar ceremonies of his religion, if there are any such ceremonies. § 14. Court to ascertain capacity of infant, etc. The court before whom an infant, or a person apparently of weak intellect, is produced as a witness, may examine such person to ascertain his capacity, and whether he understands the nature and obligations of an oath; and any court may inquire of any person, what are the peculiar ceremonies observed by him in swearing, which he deems most obligatory. 23 M. 104. TITLE. 2. TAKING THE TESTIMONY OF WITNESSES WITHIN THIS STATE. § 15. Depositions authorized to be taken. Depositions may be taken in the manner, and according to the regulations, provided in this chapter, to be used before any magistrates or other persons authorized to examine witnesses, in any other than criminal cases. § 16. Same-in what cases. When a witness whose testimony is wanted in any civil cause pending in this state, lives more than thirty miles from the place of trial, or is about to go out of the state, and not to return in time for trial, or is so sick, infirm or aged as to make it probable that he will not be able to attend at the trial, his deposition may be taken in the manner hereinafter provided, § 17. Appointment of time and place-notice. At any time after the cause is commenced by the service of process or otherwise, or after it is submitted to arbitrators or referees, either party may apply to any justice of the peace, who shall issue a notice to the adverse party, to appear before the said justice, or any other justice of the peace, at the time and place appointed for taking the deposition, and to put such interrogatories as he may see fit. $18. Service of notice on agent or attorney. The said notice may be served on the agent or attorney of the adverse party, and shall have the same effect as if served on the party himself. $19. Service on one of several parties. When there are several persons, plaintiffs or defendants, a notice served on either of them is sufficient. § 20. Manner of service of notice. The notice shall be served by delivering an attested copy thereof to the person to be notified, or by leaving such copy at his place of abode, allowing in all cases not less than twenty-four hours after such notice before the time appointed for taking the depositions, and also allowing time for his travel to the place appointed after being notified, not less than at the rate of one day, Sundays excepted, for every twenty miles travel. $21. Notice may be waived. The written notice before prescribed may be wholly omitted, if the adverse party, or his attorney, in writing, waives the right to it. $ 22. Oath of deponent-examination. The deponent shall be sworn to testify the whole truth, and nothing but the truth, relating to the cause for which the deposition is taken, and he shall then be examined by the parties, if they see fit, or by the justice, and his testimony shall be taken in writing. $23. Order of examination. The party producing the deponent shall be allowed first to examine him, either upon verbal or written interrogatories, on all points which he deems material, and then the adverse party may examine the deponent in like manner; after which either party may propose such further interrogatories as the case requires. $ 24. Deposition to be written and read and signed. The deposition shall be written by the justice or by the deponent, or by some disinterested person, in the presence and under the direction of the justice, and be carefully read to or by the deponent, and shall then be subscribed by him. § 25. Certificate of justice to deposition. The justice shall annex to the deposition a certificate substantially as follows: State of Minnesota, SS. County of I, A. B., justice of the peace in and for said county, do hereby certify that the above deposition was taken before me, at my office in the..... in said county, on the........day of.... 18...., at...... o'clock, ; that it was taken at the request of the plaintiff (or defendant), upon verbal (or written) interrogatories; that it was reduced to writing by myself (or by deponent, or by... a disinterested person, in my presence and under my direction); that it was taken to be used in the suit of A. B. vs. C. D., now pending in.. .court; and that the reason for taking it was (here state the true reason); that.... attended at the taking of said deposition (or, that a notice, of which the annexed is a copy, was served upon him, on the...... ...day of..... 18....); that said deponent, before examination, was sworn to testify the whole truth, and nothing but the truth, relative to the said cause, and that the said deposition was carefully read to (or by) said deponent, and then subscribed by him. day of...... one A. B., justice of the peace. § 26. Deposition, how disposed of. The deposition shall be delivered by the justice to the court, or arbitrators, or referees, before whom the cause is pending, or shall be inclosed and sealed by him, and directed to them, and shall remain sealed until opened by said court, or the clerk thereof, or arbitrators, or referees. § 27. Deposition may be used, when. No deposition shall be used if it appears that the reason for taking it no longer exists: provided, that if the party producing the deposition in such case shows any sufficient cause then existing for using such deposition, it may be admitted. 18 M. 506. |