CHAPTER 101.

TITLE XXII, goods, or the value thereof, or damages for the taking or detention thereof, or for any injury done to the same, the goods or money so recovered shall not be considered assets in his hands, but shall, after deducting the costs and expenses of the suit, be paid over and delivered to the person for whose use or benefit they were so claimed or held by the deceased person.

If demandant in real or mixed action, die, his

heir or executor,

SEC. 8. When judgment for a return, in an action of replevin, shall be rendered against an executor or administrator, the goods returned by him shall not be considered assets in his hands; and if they shall have been included in the inventory, it shall be a sufficient discharge for the executor or administrator, to show that they have been returned in pursuance of such judgment.

SEC. 9. When there are several plaintiffs or defendants in any personal action, the cause of which survives, either by the common law, or by the provisions of this chapter, and any of them shall die before final judgment, the action shall proceed at the suit of the surviving plaintiff or against the surviving defendant as the case may be.

SEC. 10. If, in such case, all the plaintiffs or all the defendants shall die before final judgment, the action may be prosecuted or defended by or against the executor or administrator of the last surviVing plaintiff or defendant, respectively, in the same manner as if such last survivor had originally been the only plaintiff or defend

ant.

SEC. 11. In all real and mixed actions, if the demandant shall die before final judgment, his heir, within such time as the court shall &c. may prose- allow, may appear and prosecute the suit, in the same manner as if the action had been originally commenced by him, or the action may be prosecuted by the executor or administrator for the benefit of the heir, or of the creditors of the deceased.

cute.

In case of the death of one of

SEC. 12. If there are several demandants in such action, and any of several demand. them shall die before final judgment, the heir, executor or adminisants, his heir, &c. trator of the deceased party may be admitted, on motion, to prosecute the suit jointly with the survivors, in the same manner as if he had joined with them in commencing the suit.

may be admitted. 10 Mass., 180.

11 do 56.

When surviving demandants may

SEC. 13. If the interest of the deceased party passes to the surviprosecute suit. ving demandants, or if there be no motion for the admission of another person as heir, executor or administrator, within the time allowed by the court for that purpose, the surviving demandants may prosecute the suit for so much of the premises in question as may be claimed by them.

When suit may be prosecuted against surviving defendants in real or mixed action.

2 Pick.. 23.

2 Mass., 480.

Same proceed. ings to be had in actions, &c., for

partition.

2 Mass.. 479. 10 do 5.

When interest of

SEC. 14. When there are several defendants in any real or mixed action, and any of them shall die before final judgment, the action may be prosecuted against the surviving defendants, for so much of the premises as they shall hold or claim.

SEC. 15. The same proceedings as are prescribed in the preceding sections, in relation to real and mixed actions, shall be had in all petitions and actions for partition of lands, in case of the death of any of the parties, except as is provided in the two following sections.

SEC. 16. If upon the death of either of several plaintiffs or petitioners, in a suit for partition, the interest of the deceased party shall deceased plaintiff pass to the surviving plaintiffs or petitioners, or to any person who in partition pas shall be admitted to join them in the suit, it shall be prosecuted aca party, such per cordingly, in the manner before provided respecting real actions, but son may be made if the interest of the deceased party shall pass to any person who is

ses to person not

defendant, &c.

not so admitted as a plaintiff or petitioner, such person may by, order of the court, be made a defendant or respondent, and the same proceedings may be had against him, as would have been necessary to make him an original defendant or respondent.

TITLE XXII. CHAPTER 101.

SEC. 17. If upon the death of either of several defendants or re- When suit to spondents, the interest of the deceased party shall pass to the surviv- proceed against surviving defending defendants or respondents, the suit may proceed against them ants without new process. without any new process, but if the interest of the deceased party shall pass to any other person, such person may be made a defendant or respondent, by order of the court, in the manner prescribed in the preceding section.

a

When husband may be admitted wife, suit com

to prosecute with

menced by her when unmar

14 Mass., 295.

L

SEC. 18. When any action is brought by an unmarried woman, either alone or jointly with others, and she shall be married before final judgment, her husband may, on his own motion, be admitted as party to prosecute the suit with her, and with the other plaintiffs, if there be any, in like manner as if he had originally joined in the suit. ried. SEC. 19. If a female defendant marry at any time before final judg- 11 do. 342. ment, her husband may, on his own application, or on the application When husband of the plaintiff, be made a co-defendant in the suit; but if such hus- may be made coband be made a defendant on the application of the plaintiff, he shall commenced have the same right to contest the fact of his marriage, as if the suit against wife behad been originally brought against him as husband of such female defendant.

SEC. 20. When an action is authorized or directed by law, to be brought by or in the name of a public officer, or by any trustee appointed by virtue of any statute, his death or removal shall not abate the suit, but the same may be continued by his successor, who shall be substituted for that purpose by the court, and a suggestion of such substitution shall be entered on the record.

defendant in suit

fore marriage.

Death of public

officer not to

abate suit, &c.

suit may be pro

SEC. 21. If, during the pendency of any action, either party shall when party bebecome insane, the action may be prosecuted or defended by his comes insane, guardian, in like manner as if it had been commenced after the appoint- secuted or defenment of the guardian, or the court may appoint a guardian to prose- ded by guardi cute or defend the suit as the case may require.

guardian.

5 Pick., 431.

Proceedings in

sole plaintiff, in replevin, &c.

SEC. 22. In all actions of replevin, or in attachment, when the sole plaintiff shall die during the pendency of the suit, it shall be sufficient case of death of for the defendant or defendants, as the case may be, to notify the surety or sureties in the replevin or attachment bond to appear and prosecute the suit, and if he or they shall fail so to do within such time as the court shall direct, then his or their appearance may tered by the defendant or defendants, and thereupon the cause shall be proceeded in to judgment and execution, in like manner and with like effect as though the same had been originally commenced in the name of such surety or sureties.

be en

of parties.

SEC. 23. In all cases provided for in this chapter, when any change Amendments, of parties in the suit shall happen after its commencement, the court &c., on change may allow amendments of the declaration and other proceedings, and such suggestions to be entered on the record, as the cifcumstances of the case shall require.

TITLE XXII.

CHAPTER 102.

CHAPTER 102.

When deposi

tions may be ta

ken.

Affidavit to be made; its contents.

Order for examining witness.

When application to be dismissed.

Deposition.

To be signed and filed.

When deposition

OF EVIDENCE.

Of taking Testimony Conditionally, within this State.

SECTION 1. Whenever any action pending in any court of law, being a court of record, shall have been commenced by the actual service of process or declaration, 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 hereinafter prescribed.

SEC. 2. The party desiring the examination of a witness, may apply to any judge of a court of record, or circuit court commissioner, 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 the witness is about to depart from this state, or that he is so sick, aged or infirm, as to afford reasonable grounds for apprehension that he will not be able to attend the trial of such suit.

SEC. 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 him, 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.

SEC. 4. The adverse party may show cause against proceeding on (in) such examination, by proof that such witness is not about to depart from this state, or that he is not sick, aged 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.

SEC. 5. If no sufficient cause be shown, upon due proof of service of such order, and a copy of the affidavit upon which the same was founded, 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.

SEC. 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 with the clerk of the court in which such action shall be pending.

SEC. 7. Such deposition, or a certified copy thereof, may be given to be read in evi- in evidence by either party, on the trial of the cause, or upon the as7 Wend., 26. sessment of damages therein by the clerk or a jury, or by virtue of

dence.

any writ of inquiry 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 attendance at such trial or assessment could not be compelled by the ordinary process of law.

TITLE XXII.

CHAPTER 102.

ed.

SEC. 8. But the party against whom such deposition is to be used, How reading may prevent the reading thereof, by satisfactory proof that sufficient may be preventnotice was not given 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.

SEC. 9. Such deposition shall have the same effect, and no other, Effect of deposi as the oral testimony of the witness would have if given on such trial tion. or assessment, and every objection to the competency or credibility of such witness, and to the competency or revelancy (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.

compelled to at

SEC. 10. The officer granting such order, upon the application of Witness how the party desiring the examination of a witness, may compel the at- tend. tendance of such witness by issuing a summons for that purpose, and enforcing the same in the manner prescribed in this chapter.

Of taking the testimony of certain Witnesses to prove Wills.

of county to

SEC. 11. Whenever all or any of the subscribing witnesses to any Taking testimowill heretofore executed, or hereafter to be executed, shall reside ny of witness out within this state, and out of the county of (to) the judge of probate prove will. to (of) which exclusive power is given to take the proof of such will, and cannot, by reason of infirmity or sickness attend before such judge of probate to prove such will, the testimony of such witness may be taken in the manner hereinafter prescribed.

SEC. 12. Any person interested in the proof of such will, may, on Who may apply: the day specified in the notice required by law, on which the proof of affidavits. any such will is to be taken, present to such judge of probate an affidavit, stating the names and residence of the subscribing witness or witnesses to such will, whose attendance cannot be procured before such judge of probate, by reason of infirmity or sickness, accompanied by the affidavit of some disinterested person, of the sickness or infirmity of such witness or witnesses.

Order to take

probate.

SEC. 13. If such judge of probate shall be satisfied that any such witness is so sick or infirm, that it is not probable his attendance testimony before could be procured within a reasonable time before such judge, he another judge of shall make an order directing the testimony of such witness to be taken before the judge of probate of the county in which the witness resides, at such time, and at such place, within such county, as shall be specified in such order, and may annex the will to such order; and notice of such examination shall be given to all persons interested, in such manner as shall be specified in such order.

SEC. 14. The judge of probate before whom such testimony shall Authority of such be directed to be taken, shall have power to take the same, and may judge. issue subpœnas under his seal of office to compel the attendance of such witness, and enforce obedience thereto, and may adjourn the taking of such testimony, if necessary, from the day and place appointed in said order, to such other day, and such other place in such

TITLE XXII.

CHAPTER 102. County, as he shall appoint; but such judge shall not take such testimony until it be proved to his satisfaction, that notice of the examination has been given as directed in the order.

Testimony, how authenticated,

&c.

To be filed; evidence.

Fees fortaking testimony..

When commis

7 Wend., 513.

7 do. 520.

9 do. 444.

SEC. 15. The testimony so taken shall be reduced to writing by such judge of probate, and be carefully read to, and subscribed by such witness; and when so subscribed, shall be certified by such judge, under his hand and seal of office, and forthwith transmitted to the judge of probate who made the order for taking the same.

SEC. 16. Such testimony so certified, shall be filed by the judge of probate authorized to take the proof of such will, and shall be receied by him as evidence on proving the same, subject to all legal objection.

SEC. 17. The judge of probate taking such testimony, shall be en titled to the like fees therefor, as for similar services in causes pending before him, to be paid by the person requiring such testimony to be taken, and to be allowed by the judge of probate taking the proof of such will, in the same manner as if such testimony had been taken before him.

Of taking the Testimony of Witnesses out of this State.

SEC. 18. Whenever any action shall be pending in a court of law, sion to issue, &c. being a court of record, and an issue of fact shall have been joined therein, and it shall appear on the application of either party, that any witness not residing within this state, is material to 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, authorizing them, or any of them, to examine such witness on oath, upon the interrogatories annexed to such commission; to take and certify the deposition of such witness; and to return the same according to the direction given with such commission, and upon the written consent of the parties to such action, or their attorneys, being filed in the clerk's office, the clerk of such court may issue such commission without other authority.

May be ordered by justice of su

SEC. 19. If such action be pending in any court of record, any juspreme court, &c. tice or judge of such court, or circuit court commissioner may, either in term or vacation, grant an order that such commission issue, upon proof that due notice of application for such order has been served on the adverse party, at least ten days before the making of such application.

Order to be filed, subject to control of court.

Who to settle interrogatories.

To be annexed to commission.

SEC. 20. Such order shall be filed in the office of the clerk of the court in which the action is pending, and shall be granted only in the like cases, and upon the same terms that such court would award such commission, and shall be subject to the control of such court in all respects.

SEC. 21. The interrogatories to be annexed to such commission, shall be settled by a justice of the supreme court, or by a judge of the county court at chambers, or by a circuit court commissioner, and upon such notice as shall be established by the practice of the court; and the endorsement upon any such interrogatories by the parties to the suit, or their ettorneys, of their consent thereto, shall be equivaient to the settlement and allowance of such interrogatories by a judge.

SEC. 22. In settling such interrogatories, either party shall be allow ed to insert any question pertinent to the cause which he shall pro