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CHAPTER XIII.

OF WITNESSES AND DEPOSITIONS.

person.

Parties to the action are not excluded from being witnesses upon the ground of interest, except-

1. That no party to an action or proceeding is allowed to testify therein, when the opposite party is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased

2. Persons convicted of felony, unless pardoned, or the judgment is reversed on appeal, cannot be witnesses.

3. Attorneys or counselors cannot, except by consent of their client, be examined as to any confidential communications made to them in the course of their professional employment, and the like rule applies to physicians, surgeons, clergymen or priests, with respect to confidential communications made to them in their professional capacity

4. Husband or wife cannot be witnesses for or against each other, except in actions brought by one against the other.

5. Public officers cannot be examined as witnesses in reference to communications made to them in official confidence, when the public interest would, by such disclosures, be injured.

6. Laws relative to the attestation of instruments required to be attested are reserved from the operation of the statute allowing parties in interest to testify.

Negroes can testify in all cases where whites are permitted to act as witnesses.

The testimony of a witness in this State may be taken in an action at any time after the service of the summons, or the appearance of the defendant; and in a special proceeding, after a question of fact has arisen therein, in the following cases :

1. When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended.

2. When the witness resides out of the county in which his testimony is to be used.

3. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required.

4. When the witness, otherwise liable to attend the trial, is, nevertheless, too infirm to attend ; or resides within the county, but more than fifty miles from the place of trial.

The deposition may be taken before any Judge, or Clerk of a Court, or any Justice of the Peace, or Notary Public in this State, on serving upon the adverse party previous notice of the time and place of the examination, together with a copy of an affidavit showing that the case is one mentioned as above stated. Such notice shall be at least five days, and in addition one day for every twentyfive miles of the distance of the place of examination from the residence of the person upon whom notice is served, unless, for cause shown, a Judge, by order, prescribe a shorter time.

Either party may attend such examination, and put such questions, direct and cross, as may

be

proper. The deposition, when completed and corrected, shall be signed by the witness, and sealed and directed to the Clerk of the Court in which the action is pending, or to such person as the parties, in writing, may agree upon, and either delivered by the officer taking the same to the Clerk, or such person, or transmitted through the mail, or by some safe private opportunity; and such deposition may be used by either party upon the trial against any party giving or receiving such notice, subject to all legal objections. If the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination.

If the deposition to be taken be by the reason of the absence or intended absence from the county of the witness, or because he is too infirm to attend, proof, by affidavit or oral testimony, shall be made at the trial that the witness continues absent or infirm, to the best of deponent's knowledge or belief.

Depositions thus taken may be also read in case of the death of the witness.

When a deposition has been once taken, it may be read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it.

DEPOSITIONS TAKEN OUT OF THE STATE.

The testimony of a witness out of the State may be taken by deposition in an action at any time after the service of the summons, or the appearance of the defendant; and in a special proceeding, at any time after a question of fact has arisen therein.

The deposition of a witness out of the State shall be taken upon commission issued from the Court, under the seal of the Court, upon an order of the Judge or Court, on the application of either party, upon five days' previous notice to the other. It shall be issued to a person agreed upon by the parties, or if they do not agree, to any Judge or Justice of the Peace selected by the officer granting the commission, or to a Commissioner appointed by the Governor of this State to take affidavits and depositions in other States or Territories.

Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled, if the parties disagree as to their form, by the Judge or officer granting the order for the commission, at a day fixed in the order, or at the time of granting the order for commission, may be annexed to the commission ; or, when the parties agree to that mode, the examination may be without written interrogatories.

The commission shall authorize the Commissioner to administer an oath to the witness, and to take his deposition in answer to the interrogatories, or when the examination is to be without interrogatories in respect to the questions in dispute, and to certify the deposition to the Court, in a sealed envelope directed to the Clerk or other person designed or agreed upon, and forward to him by mail, or other usual channel of conveyance.

CHAPTER XIV.

JUDICIAL RECORDS, HOW PROVED.

A judicial record of this State, or the United States, or any Territory, may be proved by the production of the original, or a copy thereof, certified by the Clerk or other person having the legal custody thereof, under the seal of the Court, to be a true copy of such record.

The records and judicial proceedings of the Courts of any other State of the United States, or of any Territory, may be proved or admitted in the Courts of this State, by the attestation of the Clerk, and seal of the Court annexed, if there be a seal ; together with a certificate of the Judge, chief Justice, or presiding Magistrate, as the case may be, that the said attestation is in due form.

A judicial record of a foreign country may be proved by the production of a copy thereof, certified by the Clerk, with the seal of the Court annexed, if there be a seal—or by the legal keeper of the record, with the seal of his office annexed, if there be a seal—to be a true copy of such record, together with a certificate of a Judge of the Court, that the person making the certificate is the Clerk of the Court, or the legal keeper of the record, and in either case that the signature is genuine, and the certificate in due form; and, also, together with the certificate of the Minister or Embassador of the United States, or of a Consul of the United States in such foreign country, that there is such a Court, specifying generally the nature of its jurisdiction, and verifying the signature of the Clerk and Judge, or other legal keeper of the record.

Second. A copy of the judicial record of a foreign country shall also be admissible in evidence upon proof :

1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it.

2. That such original was in the custody of the Clerk of the Court or other legal keeper of the same; and,

3. That the copy is duly attested by a seal, which is proved to be the seal of the Court where the record remains, if it be the record of a Court; or if there be no such seal, or if it be not the record of a Court, by the signature of the legal keeper of the original.

CHAPTER XV.

ACKNOWLEDGMENTS.

The proof or acknowledgment of every conveyance affecting any real estate shall be taken by some one of the following officers :

1. If acknowledged or proved within this State, by some Judge or Clerk of a Court having a seal, or some Notary Public, or Justice of the Peace; provided, when the acknowledgment is taken before a Justice of the Peace in any other county than that in which the real estate is situated, the same shall be accompanied with the certificate of the Clerk of the District Court of such county, as to the official character of the Justice taking the proof or acknowledgment, and the authenticity of his signature.

2. If acknowledged or proved without this State, but within the United States, shall be taken by some one of the following officers :

A Judge or Clerk of a Court having a seal, or some Notary Public, or Justice of the Peace, or by any Commissioner appointed by the Governor of this State for that purpose; provided, that when the acknowledgment is taken by a Justice of the Peace, the same shall be accompanied by the certificate of the Clerk of a Court of record of the county having a seal, as to the official character of the Justice and the authenticity of his signature.

3. If acknowledged or proved without the United States, by some Judge or Clerk of any Court of any State, Kingdom or Empire having a seal, or by any Notary Public therein, or by any Minister, Commissioner, or Consul of the United States, appointed to reside therein.

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