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parison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one admissible in evidence or connected with the case or not: Provided, Proviso, That if such paper is not one admissible in evidence for some admissible other purpose, or connected with the case, it shall not be ad- in evidence. missible in evidence for the purpose of comparison unless it was made before the controversy arose concerning which such suit or proceeding was brought.

paper not

account or

stated.

SEC. 52. In all actions brought in any of the courts of this Proof of open State, to recover the amount due on an open account or upon account an account stated, if the plaintiff or some one in his behalf shall make an affidavit of the amount due, as near as he can estimate the same, over and above all legal set-off, and annex thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the declaration filed in the cause, or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his plea shall, by himself or agent, make an affidavit and serve a copy thereof on the plaintiff or his attorney, denying the same; and if the defendant in any action shall give notice, with his plea of a set-off, founded upon an set-off. open account, or upon an account stated, and shall annex to such plea and notice a copy of such account, and an affidavit made by himself or by some one in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and shall serve a copy of such account and affidavit, with a copy of such plea and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such set-off, and of the plaintiff's liability thereon, unless the plaintiff, or some one in his behalf, shall within ten days after such service in causes in the circuit court, and before trial in other cases, make an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serve a copy thereof upon the defendant or his attorney, and in case of a denial of part of such set-off, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the set-off as is not denied by the plaintiff's affidavit: Provided, That any affidavit Proviso, in this section mentioned shall be deemed sufficient if the sufficiency same is made within ten days next preceding the issuing of the writ or filing of the declaration or plea.

of affidavit.

SEC. 53. In all trials, hearings, and proceedings in any Books of cause or suit in any court, or before any officer, arbitrators, or account. referees, books of accounts, containing charges or entries for money paid, laid out, furnished or lent, shall be received and admitted as evidence, and deemed to be evidence of such

charges and entries, and that such moneys were so paid, laid out, furnished or lent, as is in such books charged or entered, and of the liability of the person charged therefor, in the same manner and to the same extent as books of account containing charges for goods, wares, or merchandise sold and delivered, are received and admitted as evidence of sale and delivery of such goods and merchandise, and of the liability of the person charged therefor: Provided, This section shall not not to apply. apply to cases where persons acting or having acted as commission merchants or agents for the sale of produce, grain, or other property on commission, except as to the amount charged as commissions for selling, or buying such produce, grain or other property unless accompanied by a voucher or receipt for the money so claimed to be laid out, lent, or furnished.

Proviso,
when section

Proof and disproof

of loss of instrument.

Proof of lost negotiable promissory note, etc.

Bond of indemnity to be given.

Proviso, costs.

Further proviso, bond at commencement of suit.

Admission of

member of corporation.

SEC. 54. Whenever a party to any instrument shall have been permitted to prove by his own oath the loss of any instrument, in order to admit other proof of the contents thereof, the adverse party may also be examined by the court on oath, to disprove such loss, and to account for such instrument. SEC. 55. In any suit founded on any negotiable promissory note or bill of exchange, or in which such note, if produced, might be allowed as a set-off in the defense of any suit, if it appear on the trial that such note or bill was, lost while it belonged to the party claiming the amount due thereon, parol or other evidence of the contents thereof may be given on such trial, and notwithstanding such bill or note was negotiable, such party shall be entitled to recover the amount due thereon, as if such note or bill had been produced.

SEC. 56. But to entitle a party to such recovery, he shall execute a bond to the adverse party, in a penalty at least double the amount of such note or bill, with two sureties to be approved by the court in which the trial shall be had, conditioned to indemnify the adverse party, his heirs, and personal representatives against all claims by any other person on account of such note or bill, and against all costs and expenses by reason of such claim: Provided, That such party shall not recover costs in such case, unless (before the commencement of such suit) he shall have executed and tendered to such adverse party, or, in case of several defendants, to one of such defendants, a bond conditioned as aforesaid, with sureties as aforesaid, approved by the judge or clerk of such court, or the circuit court commissioner of the county where such suit is brought, or, in actions brought before justices of the peace, by such justice: And Provided further, That upon filing such last mentioned bond with the clerk of said court, or with such justice, at the time of the commencement of such suit, no other or further bond shall be necessary to entitle such party to such recovery upon such note or bill, with costs as aforesaid.

SEC. 57. In suits by or against a corporation, the admission of any member thereof not named on the record as a party to

such suit, shall not be received as evidence against such corporation, unless such admission was made concerning some transaction, in which such member was the authorized agent of such corporation.

to make will.

SEC. 58. In proceedings for the probate of wills, it shall Competency not be necessary for the proponent in the first instance to introduce any proof to show the competency of the decedent to make a will, but the like presumption of mental competency shall obtain as in other cases.

witness not

SEC. 59. Any competent witness in a cause shall not be ex- When cused from answering a question relevant to the matter in excused from issue, on the ground merely that the answer to such question answering. may establish, or tend to establish, that such witness owes a debt, or is otherwise subject to a civil suit; but this provision shall not be construed to require a witness to give any Construction answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture, nor in any respect to vary or alter any other rule respecting the examination of witnesses.

of provision.

prosecutions

SEC. 60. No person shall be excused from attending and Witnesses in testifying, or from producing books, papers, contracts, agree- under act 255, ments and documents in any cause, suit or proceeding, civil, of 1899. criminal or otherwise, based upon or growing out of any alleged violation of any of the provisions of act two hundred fifty-five of the public acts of eighteen hundred ninety-nine, relating to trusts and combinations in restraint of trade or of any act amendatory or declaratory thereof, or supplemental thereto in any court of competent jurisdiction, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to fine, punishment, penalty or forfeiture. The attendance and testimony of such persons in such cases and the production of such books, papers, contracts, agreements and documents may be enforced in the same manner as in any other cause, suit or proceeding. But no person shall be Immunity prosecuted or subjected to any fine, imprisonment, penalty or tion. forfeiture for or on account of any matter or thing concerning which he may testify, or produce evidence, documentary or otherwise, in any such case, suit or proceeding. No testimony so given by him shall in any prosecution be used as evidence, either directly or indirectly, against him: Provided, Proviso, That immunity shall extend only to a natural person who in immunity. obedience to a subpoena gives testimony under oath, or produces evidence, documentary or otherwise, under oath: Pro- Further vided further, That no person so testifying shall be exempt no person from prosecution and punishment for perjury committed in exempt from so testifying.

from prosecu

extent of

proviso,

prosecution for perjury.

priest not to

SEC. 61. No minister of the gospel, or priest of any de- Minister or nomination whatsoever, shall be allowed to disclose any con- disclose confessions made to him in his professional character, in the fessions. course of discipline enjoined by the rules or practice of such denomination.

Physician not allowed to disclose professional information.

Proviso,

when privilege waived.

Further proviso, waiver by heirs.

No person excluded for crime, interest or relationship.

Witness in own behalf.

No witness disqualified for interest, etc.

Proviso, defendant in criminal

case.

Of Privilege and Competency of Witnesses.

SEC. 62. No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, however, That in case such patient shall bring an action against any defendant to recover for any personal injuries, or for any malpractice, if such plaintiff shall produce any physician as a witness in his own behalf, who has treated him for such injury, or for any disease or condition, with reference to which such malpractice is alleged, he shall be deemed to have waived the privilege herein before provided for, as to any or all other physicians, who may have treated him for such injuries, disease or condition: Provided further, That after the decease of such patient, in a contest upon the question of admitting the will of such patient to probate, the heirs at law of such patient, whether proponents or contestants of his will, shall be deemed to be personal representatives of such deceased patient for the purpose of waiving the privilege hereinbefore created.

SEC. 63. No person shall be excluded from giving evidence in any matter, civil or criminal, by reason of crime or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit or proceeding, in which such testimony may be offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided.

SEC. 64. On the trial of any issue joined, or in any matter, suit or proceeding, in any court, or on any inquiry arising in any suit or proceeding in any court, or before any officer or person having by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties to any such suit or proceeding named in the record, and persons for whose benefit such suit or proceeding is prosecuted, or defended, may be witnesses therein in their own behalf or otherwise, in the same manner as other witnesses, except as hereinafter otherwise provided; and the deposition of any such party or person may be taken and used in evidence under the rules and statutes governing depositions, and any such party or person may be proceeded against and compelled to attend and testify, as is provided by law for other witnesses. No person shall be disqualified as a witness in any civil or criminal case or proceeding by reason of his interest in the event of the same as a party or otherwise or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility: Provided, however, That a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any pre

sumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.

opposite party

heirs, assigns,

SEC. 65. When a suit or proceeding is prosecuted or de- Testimony of fended by the heirs, assigns, devisees, legatees, or personal in suits of representatives of a deceased person, the opposite party, if ex- etc. amined as a witness in his own behalf, shall not be admitted to testify at all to matters which, if true must have been equally within the knowledge of such deceased person; and when any suit or proceeding is prosecuted or defended by any surviving partner or partners, the opposite party, if examined as a witness, in his own behalf shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of the deceased partner, and not within the knowledge of any one of the surviving partners. No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such dece dent, unless he shall be called by such heirs or legal representatives. And when any suit or proceeding is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been. equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviving officer or agent of the corporation, nor when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation (or its assigns) shall any person who is or has been an officer or agent of any such corporation be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person: Provided, That whenever the words "the Proviso, opposite party" occur in this section it shall be deemed to " include the assignors or assignees of the claim or any part party." thereof in controversy: Provided further, That when the testi- Proviso, mony of any person would be barred in case of the death of any of the persons herein before mentioned, it shall also be barred if such person shall have been adjudged to be and still is at the time of the trial insane or mentally incompetent, as to all matters, which, if true, must have been equally within his knowledge at a time when he was sane and mentally competent: And Provided further, That whenever the deposi- Further tion, affidavit or testimony of such party taken in his life affidavit time or when mentally sound shall be read in evidence in such of insane suit or proceeding, the affidavit or testimony of the other party shall be admitted in his own behalf on all matters mentioned or covered in such deposition, affidavit or testi. Further mony: And Provided further, That when the testimony or testimony deposition of any witness has once been taken and used (or competent,

definition of

'opposite

insane

persons.

proviso,

person.

proviso.

taken while

etc.

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