relation to bastards, or in relation to any other matter or cause, which ART. 1. may be brought before such court of general sessions by appeal from a justice or justices of the peace, until after a final determination thereon by such court.s $ 16. No certiorari, habeas corpus, or other writ or proceeding, Th. shall issue or be allowed, to remove into the supreme court, any cause or matter which may be brought before a court of common pleas, or before the county judges of a county, by appeal from a justice or justices of the peace, or by appeal from commissioners of highways, or from any other officers, until after a final determination thereon by such court, or by such judges. TITLE III. OF EVIDENCE. ART. 1. Of taking, conditionally, the testimony of witnesses within this state. ART. 3.—Of affidavits taken, and other judicial proceedings had in other states and ART. 4.-Of depositions taken in this state, to be used in courts of other states and countries. ART. 5. Of proceedings to perpetuate testimony. ART. 6. Of witnesses, their privileges, and compelling their attendance. ART. 7.—Of documentary evidence, and the preservation thereof. ART. 3. Of the examination of witnesses, of certain rules of evidence, and of evidence in certain cases. ART. 9. Of the administration of oaths and affirmations. ARTICLE FIRST. Of taking, conditionally, the Testimony of Witnesses within this State. SEC. 1. Stage of the cause in which depositions may be taken. 2. Affidavit to be made; its contents. 3. Order for examination, when to be granted. 4. For what causes application to be dismissed. 5. Deposition when to be taken; what to be inserted. 6. To be signed, &c. and when to be filed with clerk. 7. In what cases deposition may be read in evidence. csitions may S1. Whenever any action pending in any court of law, being a when depocourt of record, shall have been commenced by the actual service of be taken. process, or where the defendant shall have appeared in the action, either party may have the testimony of any witness taken conditionally, to be used in the cases and under the circumstances herein after prescribed. (8) 1 R. L. p. 142, § 5. TITLE 3. Affidavit to be made; its contents. Order for examining wit -ness. When appli to be dismissed. Deposition. To be signed and filed. When to be $ 2. The party desiring the examination of a witness, may apply to any judge of the court, upon an affidavit which shall state, 1. The nature of the action and the plaintiff's demand: 2. If the application be made by the defendant, the nature of his defence: 3. The name and residence of the witness: 4. That the testimony of such witness is material, and necessary for the party making such application, in the prosecution or defence of such suit, as the case may be: and, 5. That such witness is about to depart from this state, or that he is so sick or infirm, as to afford reasonable grounds for apprehension that he will not be able to attend the trial of such suit. $3. If the officer to whom such application is made, shall be satisfied that the circumstances of the case require the examination of such witness, in order to attain justice between the parties, he shall make an order requiring the adverse party to appear before such officer, and attend the examination of such witness, at such time and place as shall be therein specified; which time shall not exceed twenty days from the date of such order, and shall be as much shorter as the exigency of the case may require, and the residence of the adverse party, or his attorney, will allow, in order to afford sufficient opportunity to attend such examination. S4. The adverse party may show cause against proceeding in such examination, by proof that such witness is not about to depart from this state, or that he is not sick or infirm, or that the application for his examination is made collusively, to avoid his being examined on the trial of the cause; and upon any such cause being shown, the officer shall dismiss such application. $5. If no sufficient cause be shown, upon due proof of the service of such order, and a copy of the affidavit upon which the same was granted, the officer granting the same shall proceed to the examination of such witness, and shall take his deposition; in which deposition shall be inserted any answer or declaration of such witness, which either of the parties shall require to be included therein. $6. Such deposition shall be carefully read to and subscribed by such 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 court in which such action shall be depending. $7. Such deposition, or a certified copy thereof, may be given in read in evi- evidence by either party, on the trial of the cause, or upon denco. the assess ment of damages therein by the clerk, or by virtue of any writ of in-. quiry of damages, after it shall have been satisfactorily proved, that such witness is unable to attend such trial or assessment of damages personally, by reason of his death, insanity, sickness or settled infirmity, or that he has continued absent out of this state, so that his at tendance at such trial or assessment of damages could not be compelled by the ordinary process of law. ART. 2. vented. $8. But the party against whom such deposition is to be used, How premay prevent the reading thereof, by satisfactory proof that sufficient notice was not given him to enable him to attend the examination of such witness, or that such examination was not in all respects fair, and conducted as herein prescribed. $9. Such deposition shall have the same effect, and no other, as Effect of dethe oral testimony of the witness would have, if given on such trial position. or assessment, and every objection to the competency or credibility of such witness, and 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 as if such witness were personally examined on such trial or assessment. $10. The officer granting such order, upon the application of the compelling party desiring the examination of a witness, may compel the attend-wises to ance of such witness, by issuing a summons for that purpose, forcing the same in the manner prescribed in this Title. ARTICLE SECOND. and en Of taking the Testimony of Witnesses out of this State. SEC. 11. Commission when and in what cases to be awarded, &c. 12. May be allowed in supreme court by a justice or circuit judge. 13. Order when to be granted; where to be filed. 14. Interrogatories by whom to be settled, on notice. 15. To be annexed to commission; directions thereon. 16. Commission how to be executed; copy of this section to be annexed to it. 18. Proceedings in case of death or sickness of agent. 21. Parties may agree on mode of returning commission. mission to $11. Whenever an issue of fact shall have been joined in any ac- When comtion in a court of law, being a court of record, and it shall appear on issue, &c. the application of either party, that any witness not residing within this state, is material in the prosecution or defence of such action, the court may, upon such terms as it shall think proper, award a commission to one or more competent persons, authorising them, or any one of them, to examine such witness on oath, upon the interrogatories annexed to such commission; to take and certify the depositions of such witness; and to return the same according to the directions given with such comission." ed by justice $12. If such action be pending in the supreme court, any justice when allow of that court, or any circuit judge, may, in vacation of the said court, of supremo grant an order that such commission issue, upon proof that due no- cuit judge. (9) 1 R. L. p. 519, § 11. VOL. II. 50 court or cir TITLE 3. tice of application for such order has been served on the adverse party, at least ten days before the time of making such application. But the power herein conferred shall not be exercised by any recorder of a city, or supreme court commisssioner, or judge of any county courts. $ 13. Such order shall be filed in the office of the clerk of the court, and shall be granted only in the like cases, and upon the same terms, that the supreme court would award such commission, and shall be subject to the control of the court in all respects. Order to be filed, &c. Who to set tle interroga torics. To bo annex ed; direc tions on com mission. Commission how to bo exocuted. Oath to wit nesses. Deposition to be written S 14. The interrogatories to be annexed to such commission, shall be settled by a judge of the court in vacation, or if the action be in the supreme court, by a justice thereof, a circuit judge, or any supreme court commissioner, or other officer authorised to perform the duties of such commissioner, upon such notice as shall be established by the practice of the court. $15. In settling such interrogatories, either party shall be allowed to insert any question pertinent to the cause, which he shall propose. The officer settling the same, shall endorse his allowance thereof, and annex them to the commission. Upon the commission he shall direct the manner in which it shall be returned, and may, in his discretion, direct the same to be returned by mail, addressed to the clerk of the court out of which it shall issue; or if issued out of the supreme court, addressed to the clerk of the county in which the venue in such action shall be laid, designating the name of such clerk, and his residence.10 $ 16. The persons to whom such commission shall be directed, or any one of them, unless otherwise expressly directed therein, shall execute the same as follows: 1. They or any one of them shall publicly administer an oath to the witnesses named in the commission, that the answers given by such witnesses to the interrogatories proposed to them, shall be the truth, the whole truth, and nothing but the truth: 2. They shall cause the examination of each witness to be reduced and certified. to writing, and to be subscribed by him and certified by such of the commissioners as are present at the taking of the same: Exhibits to &c. 3. If any exhibits are produced and proved before them, they shall bo annexed, be annexed to the depositions to which they relate, and shall in like manner be subscribed by the witness proving the same, and shall be certified by the commissioners: Duty of com missioners as 4. The commisssioners shall subscribe their names to each sheet of the depositions taken by them; they shall annex all the depositions and exhibits to the commission, upon which their return shall be endorsed; and they shall close them up under their seals, and shall address the same when so closed, to the clerk of the court from which the commission issued, or to the clerk of the county in which the venue (10) Laws of 1826, p. 357. shall be laid, as shall have been directed on the commission, at his ART. 2. place of residence: 5. If there is a direction on the commission to return the same by when to demail, they shall immediately deposit the packet so directed in the posit in postnearest post-office : office. delivered to 6. If there be a direction on the commission to return the same by When to be an agent of the party who sued out the same, the packet so directed shall be delivered to such agent. A copy of this section shall be annexed to every commission authorised by this Article.11 agent. agent. S 17. If such packet be delivered to an agent, he shall deliver the Return by same to the clerk to whom it shall be directed, or to one of the judges of the court in which the action is pending, who shall receive and open the same, upon such agent making affidavit that he received the same from the hands of one of the commissioners, and that it has not been opened or altered since he so received it.12 sick or dead, &c. S18. If such agent be dead, or from sickness or other casualty, If agent be unable to deliver such packet personally, as in the last section directed, the same may be received by the clerk or judge from the hands of any other person, upon such person making affidavit that he received the same from such agent, that such agent is dead or otherwise unable to deliver the same, that it has not been opened or altered since such person received it, and that he believes the same has not been opened or altered since it came from the hands of the commissioners.12 return. $ 19. The clerk or judge receiving and opening such commission Filing comand return, shall immediately file the same in the office of the clerk mission and of the court from which it issued, or if the action be pending in the supreme court, in the office of the clerk of the county in which the venue in the action is laid. 13 mail. $20. If the packet containing such commission and return be trans- Return by mitted by mail, the clerk to whom the same shall be addressed, shall receive the same from the post-office, and open and file it in his office. direct mode $21. The parties, or their attornies, may in writing agree on the Parties may manner in which a commission for the examination of witnesses may of return. be returned; and on filing such agreement with the clerk of the court, the attorney for the party suing out the same, may endorse thereon a direction according to such agreement; and such commission shall be returned accordingly.14 where to be $22. The commission, returns, depositions and exhibits thereto Return, &c. annexed, shall remain on file in the office of the clerk to whom the kept. same were addressed, unless the court by a special order shall direct them to be filed in the office of some other clerk. They shall at all Parties may (11) Laws of 1826, p. 357. (12) 1 R. L. p. 519, § 11. (13) Laws of 1826, p. 357. (14) Ib. & Laws of 1822, p. 225. inspect. |