tioned in the bill, and which ought to be credited on such demand, or he may be examined in open court.

examinations.

competency,

etc.

excluded

SEC. 4. Such officer shall report the proofs and examina- Report of tions had before him; and on the coming in of the report, or proofs and on proof and examination in open court, as the case may be, the court shall make such order thereupon as shall be just. SEC. 5. In all chancery cases, the court shall rule upon all Objections to objections to the competency, relevancy or materiality of testi- etc., of mony, or evidence offered, the same as in suits at law; and testimony, in all cases where the court is of the opinion that any testimony offered is incompetent, irrelevant, or immaterial, the same shall be excluded from the record: Provided, however, Proviso, That if the testimony so offered and excluded is brief, the testimony. court may in its discretion permit the same to be taken down by the stenographer separate and apart from the testimony received in the case; and in case of appeal, such excluded testimony may be returned to the appellate court under the certificate of the trial court: Provided further, That where Further proviso, such excluded testimony is not taken and returned to the order for supreme court on appeal, if upon the hearing of such appeal, excluded the supreme court shall be of the opinion that any such testimony is competent and material, it may order the same to be taken by deposition, or under a reference, and returned to said court.

testimony.

Of Depositions.

taken de bene esse.

SEC. 6. The testimony of any witness may be taken by depo- Testimony sition de bene esse, in any civil cause or matter, begun or pending in any court of record, at law or in chancery, or be fore any probate court, or commissioners on claims appointed by any probate court, or arbitrators, referees, or circuit court commissioner, or justice of the peace, in the State of Michigan, or in any other civil proceeding, when the witness is or is about to go or resides out of the State of Michigan, or is about to go, or reside more than fifty miles from the place of trial, or beyond the jurisdiction of the court; or when the witness is sick, aged or infirm, or where there is reasonable · cause for apprehension that his testimony can not be had at the trial of the cause, or where it is needed for use on hearing of motions, petitions, proceedings for injunctions, or upon any other interlocutory or other proceedings prior to final hearing of any cause; and in all cases where affidavits are permitted to be used in proceedings before the court; also when it is desired to take conditionally and perpetuate testimony in suits to be begun; and in any other case not above provided for when it shall appear to the court or judge thereof that the purposes of justice will be aided thereby. The depo- Before sition may be taken before any judge of any court of the United States, or of any state of the United States, or of any foreign country, or before any commissioner of a circuit. court in Michigan, or of the United States, or of any state, or any commissioner for Michigan, or any consul, or consular

whom taken.

Notice.

Testimony, how taken

under commission.

Interrogatories.

Attendance of witnesses.

officer, justice of the peace, officer, or notary public, authorized by the laws of this State, or of any other state, or of the United States, or by the laws of any foreign country, to administer oaths, not being of counsel or attorney for either of the parties, nor interested in the event of the cause. The seal of such court or official, or a certificate of such authority, given under the seal of any court of record, shall be prima facie evidence of authority to act. Reasonable notice must first be given in writing by the party, or his attorney, proposing to take such deposition, to the opposite party or his attorney of record, which notice shall state the name of the witness or witnesses, and the time and place of taking his deposition, and the name of the official before whom the same will be taken, and in all cases in rem, attachment or replevin, the person having the agency or possession of the property at the time of seizure, shall be deemed the adverse party until a claim shall have been put in or appearance entered in the cause; and whenever, by reason of the absence from the jurisdiction of the party, or want of an opposite attorney of record, or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts within the jurisdiction where the suit is pending, shall think reasonable, and direct. Any person may be compelled to appear and depose as provided by this act, by the order or process of any court and to produce books and papers in the same manner as witnesses may be compelled to appear and testify in court.

SEC. 7. In any case where the deposition of a witness can be taken upon notice, his deposition may instead be taken under commission, upon which section nine of this chapter shall be printed, and any circuit court commissioner in the State of Michigan, or the court in which such proceeding is begun or pending, or the judge, clerk or register thereof, or in any case pending before a justice of the peace, such justice shall upon affidavits showing reason therefor, issue a commission (upon which shall be printed section nine of this chapter) for the taking of the testimony of such witness before any person therein appointed as commissioner. Written interrogatories to be put to such witness by such commissioner, may be attached to the commission; if attached, a copy thereof shall be attached to the notice which shall in any case be given to the opposite party or his attorney, of the time and place of taking testimony under such commission. Cross and redirect interrogatories, which it is desired the commissioner shall put to the witness, shall thereupon be promptly furnished to the respective parties and to such commissioner. Where default or order pro confesso has been entered in the cause, notices shall not be necessary.

SEC. 8. Courts of record of this State shall have the power to compel the attendance of witnesses and the giving of their testimony, and the production of books, papers and other evi

dences, before commissioners or persons authorized to take testimony and also under commissions or letters rogatory, issued out of any court of any other state, or of the United States, or of any foreign government or country.

witness.

ments.

taken.

deposition.

SEC. 9. Each witness shall be sworn or affirmed by the offi- Oath of cer or person empowered to take such testimony, to tell the truth, the whole truth, and nothing but the truth, concerning the matter at issue in the cause. Every witness may be ex- Examination. amined, cross-examined, and re-examined, orally, and also so examined in addition to written, direct or cross-interrogatories. Examinations may be adjourned from time to time. AdjournTestimony may be written or taken stenographically and How transcribed under direction of the officer so taking the same testimony and shall be signed by the witness and certified as correct by the official before whom it is taken, but signatures of witnesses may be waived in writing by agreement of parties. The Return of deposition when taken shall be forthwith inclosed by the official before whom the same is taken, and indorsed with the title of the court and cause, and that the deposition was taken and sealed up by him, and how it is to be sent, and he shall sign the indorsement, and the same shall be transmitted by mail or otherwise, to the court in which the cause is pending, and in case such deposition is taken for use before commissioners on claims appointed by any probate court to such court, and then be opened by the court or clerk or register, Notice of and written notice thereof then given by mail or otherwise to the parties. Objections to notices of, or objections to the man- Objections, ner of taking the testimony, or of certifying or returning the garded as deposition, shall be regarded as waived unless made in writ. waived. ing within ten days after knowledge or notice of the return thereof.

receipt.

when re

of testimony.

SEC. 10. To perpetuate testimony, any person who expects Perpetuation to be a party to a suit, which may thereafter be commenced in any court of record, may cause the testimony of any witness material to him in the prosecution or defense of such suit to be taken conditionally, and perpetuated, under a commission so issued by any circuit court commissioner or judge of a court of record, upon affidavit, showing the necessity or reason therefor, and, so far as known, the persons interested in such matter. The commission shall direct upon whom notice shall be served, and to what court the deposition shall be returned, and such court shall have custody and control thereof until required for use in such suit. Testimony taken under this section may be used in case it cannot again be ob tained at the time of trial.

SEC. 11. Parties to actions and parties interested in suits Testimony taken by to be begun may have testimony taken and returned in any stipulation. manner agreed upon by stipulation in writing.

how used.

SEC. 12. Depositions taken under this act may be read and Depositions, considered in evidence at the trial or on any hearing, and on appeals and re-trials of the same cause of action, but the court shall have power to regulate the use, to prevent abuses

Fees for taking depositions.

How paid.

Authentication of affi

davit taken in other state or

country.

Authentica

tion of

records, etc., of courts.

thereof, and may order the retaking of testimony, or the production of the witness, if within the jurisdiction, notwithstanding that his deposition has been taken. In any case, either party, may obtain subpoena and compel the usual attendance and re-examination of the witness, notwithstanding his deposition has been taken, if he is within the jurisdiction of the court and able to attend, and give his testimony.

SEC. 13. Fees for taking depositions shall be as follows: For taking, certifying, sealing and forwarding depositions, two dollars; and for each one hundred words contained in such deposition, ten cents, which shall be considered as costs in the case; and for copies of testimony furnished to any party, three cents for each one hundred words contained in such copy. Each party shall pay for his own examinations or cross-examinations in the first instance.

SEC. 14. In cases where by law the affidavit of any person residing in another state of the United States, or in any foreign country, is required, or may be received in judicial proceedings in this State, to entitle the same to be read, it must be authenticated as follows:

It must be certified by the consul general, deputy consul general, or some consul or deputy consul of the United States resident in such foreign country, to have been taken and subscribed before him, specifying the time and place where taken and have the consular seal attached; or

2. It must be certified by some judge of a court having a seal to have been taken and subscribed before him, specifying the time and place where taken;

3. The genuineness of the signature of such judge, the existence of the court and the fact that such judge is a member thereof, must be certified by the clerk of the court under the seal thereof;

4. If such affidavit be taken in any other of the United States or in any territory thereof, it may be taken before a commissioner duly appointed and commissioned by the Governor of this State to take affidavits therein, or before any notary public or justice of the peace authorized by the laws of such state to administer oaths therein. The signature of such notary public or justice of the peace, and the fact that at the time of the taking of such affidavit the person before whom the same was taken was such notary public or justice of the peace, shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court.

SEC. 15. The records and judicial proceedings of any court in the several states and territories of the United States and of any foreign country shall be admitted in evidence in the courts of this State upon being authenticated by the attestation of the clerk of such court with the seal of such court annexed, or of the officer in whose custody such records are legally kept with the seal of his office annexed.

Of Copies of Records, Etc.

records of

SEC. 16. Copies of such records and proceedings, in the Copies of courts of a foreign country, may also be admitted in evidence foreign upon due proof:

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

2. That such original was in the custody of the clerk of the court, or other officer legally having charge of the same; and

3. That such copy is duly attested by a seal, which shall be proved to be the seal of the court in which such record or proceeding shall be.

courts, how admitted.

of court

SEC. 17. The preceding sections shall not prevent the proof Other proofs of any record or judicial proceedings of the courts of any records. foreign country, according to the rules of the common law, in any other manner than that herein directed.

copies of

SEC. 18. A copy of any order, judgment or decree, of any Authenticated court of record in this State, duly authenticated by the certifi- orders, etc. cate of the judge, clerk or register of such court, under the seal thereof, shall be admissible in evidence in any court in this State, and shall be prima facie evidence of the jurisdiction of said court over the parties to such proceedings and of all facts recited therein, and of the regularity of all proceeding prior to, and including the making of such order, judg ment or decree.

records, etc.

SEC. 19. Copies of all papers, records, entries and docu- Certified ments, required or permitted by law to be filed by any public copies of officer in his office, or to be entered or recorded therein and duly filed, entered recorded according to law, certified by such officer to be a true transcript compared by him with the original in his office, shall be evidence in all courts and proceedings, in like manner as the original would be if produced.

ances, etc.

SEC. 20. All conveyances and other instruments authorized Conveyby law to be filed or recorded, and which shall be acknowl edged or proved according to law, and if the same shall have been filed or recorded, the record, or a transcript of the record, or a copy of the instrument on file certified by the officer in whose office the same may have been filed or recorded, may be read in evidence in any court within this State without further proof thereof; but the effect of such evidence may be rebutted by other competent testimony.

deeds, etc.

SEC. 21. The record of deeds or other instruments affecting Certified the title to lands heretofore recorded in counties in this State Copies of other than the one in which the lands described therein are located, or a certified copy thereof, shall be deemed prima facie evidence of the execution and delivery of such instrument, and as such shall be received in all courts in this State, and such certified copy may be recorded in the county in which such land is situated, with like effect as the original deed or other instrument.