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proceedlings shall have been entered in his estray book as aforesaid, to transmit a certified
copy thereof to the clerk of the county commissioners' court of his county, to be by him recorded in his estray book, and filed in his office.
Sec. 18. In all cases where the appraisement of such boat or water craft, including her
cargo, shall not exceed the sum of twenty dollars, the taker shall advertise the same on the door of the court house, and in three of the most public places in the county, within ten days after the justice's said certificate shall have been entered on the records of the county commissioners' court; and is no person shall appear to prove and claim such boat or water craft, within six months from the time of taking up as aforesaid, the property in the same shall vest in the taker up; but if the value thereof shall exceed the sum of twenty dollars, it shall be the duty of the clerk of the county commissioners' court, within twenty days from the time of the reception of the justice's said certificate at his office, to cause an advertisement to be set up on the door of the court house, and also a notice thereof to be sent to the public printer as aforesaid, who shall publish the same as aforesaid; and if the said vessel be not claimed and proven within six months from said adveriisement, the same shall be vested in the taker up; nevertheless, the former owner may, at any time thereafter, recover the valuation money by proving his property and allowing to the taker up a reasonable compensation for his trouble, and costs and charges.
Sec. 19. In all cases where services shall be performed by any officers or other person or persons under this chapter, the following fees or compensation shall be allowed, to-wit: To the justice of the peace for administering oath to the taker up or finder, making an entry thereof, with the report of the appraisers, and making and transmitting a certificate thereof to the clerk of the county commissioners' court, fifty cents; to the clerk or justice for taking proof of the ownership of, and granting a certificate of the same, twenty-five cents; for registering each certificate transmitted to him by any justice as aforesaid, twelve and a half cents; for advertisements, including the newspaper publications, fifty cents in addition to the cost of such publication; to the constable for each warrant so served on appraisers, twenty-five cents; and to each appraiser the sum of twenty-five cents; which said fees shall be paid by the taker up to the person entitled thereto, whenever said services shall be rendered. All which costs and charges shall be reimbursed to the taker up or finder, in all cases where restitution of the property shall be made to the owner, in addition to the reward to which such person may be entitled for taking up as aforesaid.
Sec. 20. If any person shall act contrary to the duties enjoined by this chapter, for which no penalty is hereinbefore pointed out, the person so offending shall, on conviction thereof, forfeit and pay for every such offence, not less than five nor more than one hundred dollars, to be sued for in the name of the proper county, before any justice of the peace or other court having cognizance thereof.
APPROVED: March 3, 1845.
EVIDENCE AND DEPOSITIONS.
tories, shall be evidence, when printed by
proper authority. 2. Authyrrized reports of decisions may be read in
tridence. 3. Copies of proceedings and judgments before
justices of the peace, when duly certified,
may be read in evidence. 4. Oilicial certificate of register or receiver of land
office of United States, deemed evidence in
certain cases. 5. Land patent, its effect as evidence of title in
patentee. 6. Laws of other States and Territories, exemplifi
cations of, by secretaries of State, admissible
as evidence. 7. In suits against partners, names of individuals
not necessary to be proved in certain cases. 8. Proof of joint liability of defendants, or their
christian or surnames, when not required. 9. Certified copies of proceedings of corporations,
prima facie evidence. 10. Non-resident witnesses, depositions of, how to
examined. 15. Compensation of witnesses, and by whom paid. 16. Party interested in event of suit, not permitted
to dictate, write, or draw up deposition; effect
of so doing 17. Seal not to be broken, unless by permission of
court; penalty therefor. 18. When and by whom depositions nay be read. 19. Dedimus potestatcin, when may be sued out,
and proceedings thereon. 20. Previous notice to be given of taking deposi
tions, before suing out dedimus, and further
proceedings detined. 21. Before whom depositions may be taken, and who
may attend ; further proceedings relative
thereto. 22. After death of deponent, deposition may be used
as evidence. 23. Negro, mulatto or Indion shall not be witness,
and who deemed mulatto.
Section 1. The printed statute books of the United States, and of this State, and of the several States; of the teritories and late territories of the United States, printed under the authority of said States and territories, shall be evidence in all courts and places in this State, of the acts therein contained.
Sec. 2. The books of reports of decisions of the supreme court and other courts of the United States, of this State, and of the several States and the territories thereof, published by authority of such courts, may be read as evidence of the decisions of such courts.
Sec. 3. Copies of the proceedings and judgments before justices of the peace, certified by the justice or justices under his or their hands and seals, before whom such proceeding or judgment is had, shall be received as evidence of such proceeding or judgment. Where such certified copy is to be used as evidence in any county other than that in which the justice or justices so certifying shall reside, the same shall not be received as evidence, unless a certificate from the clerk of the county commissioners' court, (with the seal of the court,) shall be annexed thereto, certifying that on the day on which such proceeding was had, or judgment rendered, such justice so granting the same, was a justice of the peace, duly commissioned and
Src. 4. The official certificate of any register or receiver of any land office of the United States, to any fact or matter on record in his office, shall be received in evidence in any court in this State, and shall be competent to prove the fact so certified. The certificate of any such register, of the entry or purchase of any tract of land within his district, shall be deemed and taken to be evidence of title
in the party who made such entry or purchase, or his heirs or assigns, and shall enable such party, his heirs or assigns, to recover the possession of the land described in such certificate, in any action of ejectment or forcible entry and detainer, unless a better legal and paramount title be exhibited for the same.
Sec. 5. A patent for land, shall be deemed and considered a better legal and paramount title in the patentee, his heirs or assigns, than the official certificate of any register of a land office of the United States, of the entry or purchase of the same land.
Sec. 6. An exemplification by the secretary of this State, of the laws of the other States and territories, which have been, or shall hereafter be transmitted by order of the executive or legislatures of such other States or territories, to the Governor of this state, and by him deposited in the office of said secretary, shall be admissible as evidence in any court of this State.
Sec. 7. In trials of actions upon contracts, express or implied, where the action is brought by partners, or by joint payees or obligees, it shall not be necessary for the plaintiff, in order to maintain any such action, to prove the co-partnership of the individuals named in such action, or to prove the christian or surnames of such partners, or joint payees or obligees; but the names of such co-partners, joint payees or obligees shall be presumed to be truly set forth in the declaration, petition or bill: Provided, That nothing herein contained, shall prevent the defendant in any such action, from pleading in abatement as heretofore, or of proving on the trial, either that more persons ought to have been plaintiffs, or that more persons have been made plaintiffs than have a legal right to sue, or that the christain or surname is other and different from the one stated in the declaration, petition or bill; in which event the defendant's rights shall be as at common law.
Sec. 8. In actions upon contracts express or implied, against two or more defendants, alleged to have been made or executed by such defendants, as partners or joint obligors or payors, proof of the joint liability or partnership of the defendants, or their christain or surnames, shall not, in the first instance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or the filing of pleas denying the execution of such writing, verified by affidavit, as required by law.
Sec. 9. Copies of all papers, books or proceedings, or parts thereof, appertaining to transactions in their corporate capacity, of any town or city heretofore incorporated, or now incorporated, or that may hereafter be incorporated, under a general or special law of this State, certified to be true copies by the clerk or the keeper of the same under the seal of said town or city, or under the private seal of said clerk or keeper if there be no public seal; the said clerk or keeper also certifying that he is entrusted with the safe keeping of the originals of which he gives certified copies, shall be received as prima facie evidence of the facts so certified, in all the courts of this State, in any suit or proceeding pending before them.
Sec. 10. When the testimony of any non-resident witness or witnesses shall be necessary in any civil cause depending in any court of law or equity in this State, it shall be lawful for the party wishing to use the same, on giving to the adverse party or his attorney, ten days previous notice, together with a copy of the interrogatories intended to be put to such witness or witnesses, to sue out from the proper clerk's office a dedimus potestatem or commission, under the seal of the court, directed to any number of persons, not exceeding three, as commissioners, or to any judge or
justice of the peace of the county or city in which such witnesses may reside, authorizing and requiring him or them to cause such witness or witnesses to come before him or them, at such time and place as he or they may designate and appoint, and faithfully to take his, her or their deposition or depositions upon all such interrogatories as may be inclosed with, or attached to said commission, both on the part of the plaintiff and defendant, and none others; and to certify the same when thus taken, together with the said commission and interrogatories, into the court in which such cause shall be depending, with the least possible delay.
Sec. 11. When the testimony of any resident witness or witnesses shall be necessary in any suit in chancery in this State, it shall be lawful for the party wishing to use the same, to cause the deposition or depositions of such witness or witnesses, to be taken before any justice of the peace, or clerk of the circuit or county commissioners' court of the county wherein such witness or witnesses shall reside, without being required to sue out a commission, or to file interrogatories for such purpose, on giving to the adverse party or his attorney, reasonable notice of the time and place of taking the same. And it shall also be lawful, upon satisfactory affidavit being filed, to take the depositions of witnesses residing in this State, to be read in suits at law, in like manner as is above provided, in all cases where such witness or witnesses shall reside in a different county from that in which the court shall be held, is or are about to depart from the State ; 'is or are confined in jail on legal process; or is or are unable to attend such court on account of advanced age, sickness, or other bodily infirmity: Provided, That such reasonable notice shall be intended to mean at least ten days in all cases, and one day in addition thereto, (Sundays inclusive,) for every thirty miles travel from the place of holding the court, to the place where such deposition or depositions shall be taken.
Sec. 12. Previous to the examination of any witness whose deposition is about to be taken as aforesaid, he or she shall be sworn (or affirmed) by the person or persons authorized to take the same, to testify the truth in relation to the matter in controversy, so far as he or she may be interrogated; whereupon, the said commissioner or commissioners, judge, justice of the peace or clerk, (as the case may be,) shall proceed to examine such witness upon all such interrogatories as may be inclosed with, or attached to any such commission as aforesaid, and which are directed to be put to such witness, or where no such commissioner shall be necessary, upon all such interrogatories as may be directed to be put by either party litigant; and shall cause such interrogatories, together with the answers of the witness thereto, to be reduced to writing in the order in which they shall be proposed and answered, and signed by such witness. After which, it shall be the duty of the person or persons taking such deposition, to annex at the foot thereof, a certificate subscribed by himself or themselves, stating that it was sworn to and signed by the deponent, and the time and place, when and where the same was taken. And every such deposition, when thus taken and subscribed, and all exhibits produced to the said commissioner or commissioners, judge, justice of the peace or clerk as aforesaid, or which shall be proved or referred to by any witness, together with the commission and interrogatories, if any, shall be inclosed, sealed up and directed to the clerk of the court in which the action shall be pending, with the names of the parties litigant indorsed thereon: Provided, That when any deposition shall be taken as aforesaid, by any judge or justice of the peace out of this state, such return shall be accompanied by a certificate of his official character under the great seal of the State, or under the
seal of the proper court of record of the county or city wherein such deposition shall be taken.
Sec. 13. Every examination and deposition which shall be taken and returned according to the provisions of this chapter, may be read as good and competent evidence in the cause in which it shall be taken, as if such witness had been present and examined by parol in open court on the hearing or trial thereof.
Sec. 14. Each and every commissioner or commissioners, judge, justice of the peace, or clerk of the circuit or county commissioners' court, who may at any time be required to take depositions in any cause pending in any of the courts of law or equity in this State, or by virtue of any commission issued out of any court of record in any other State or territory, shall have power and authority to issue subpænas, if necessary, to compel the attendance of all such witnesses as shall be named in the commission, or by the parties litigant, where no commission is necessary, in the same manner and under the same penalties as is prescribed in other cases, where witnesses are directed to be subpænaed.
Sec. 15. Every witness attending before any commissioner, judge, justice of the peace or clerk as aforesaid, to be examined as aforesaid, shall be entitled to a compensation for his time and attendance and traveling expenses at the same rate for the time being, as is, or shall be allowed by law to wiinesses attending courts of record in this State; and the party requiring such examination shall pay the expenses thereof, but may, if successful in the suit, be allowed for the same in the taxation of costs.
Sec. 16. The party, his attorney, or any person who shall in anywise be interested in the event of the suit, shall not be permitted to dictate, write or draw up any deposition or depositions which may at any time be taken under this chapter ; and every deposition so dictated, written or drawn up, or that shall be returned to the court unsealed, or the seal of which shall be broken, shall be rejected by the court as informal and insufficient: Provided, Such seal shall have been broken previous to its reception by the clerk, to whom it shall be directed.
Sec. 17. It shall not be lawful for any party litigant or the clerk of the court into which any deposition may be returned as aforesaid, to break the seal of the
same, either in term time, or in vacation, unless by permission of the court. And if any such person or clerk shall presume to open any such deposition when taken and returned as aforesaid, without such permission as aforesaid, he shall be considered guilty of a contempt of court, and may be punished accordingly : Provided, That it shall not be considered an offence for the clerk to break open any such deposition as aforesaid, where it is doubtful from the indorsements made thereon, whether the same be a deposition or not; but in such case, it shall not be proper for such clerk to permit any person to examine any deposition, which may be thus opened by mistake, until permission shall have been first given by the court as aforesaid.
Sec. 18. All depositions taken in pursuance of this chapter, when returned into court, may be read by either party, on the trial of the causes to which they relate.
Sec. 19. In all cases hereafter, where any person or persons shall desire to perpetuate the remembrance of any fact, matter or thing, which may relate to the boundaries or improvements of land, name, or former name of water courses; the name or former name of any portion or district of country; regarding the ancient customs, laws or usages of the inhabitants of this country, as far as the same may relate to the future settlement of the land claims ; or touching the marriage or pedigree of any person or persons, or in relation to the title to slaves or servants ;