partition. 10 do. 5. deceased plain passes to person person may be etc. shall be had in all petitions and actions for partition of lands, tions, etc., for in case of the death of any of the parties, except as is pro-2 Mass., 479. vided in the two following sections. (4219.) SEC. 16. If upon the death of either of several When interest of plaintiffs or petitioners, in a suit for partition, the interest of tiff in partition the deceased party shall pass to the surviving plaintiffs or not a party, such petitioners, or to any person who shall be admitted to join made defendant, them in the suit, it shall be prosecuted accordingly, in the manner before provided respecting real actions, but if the interest of the deceased party shall pass to any person who is 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. ceed against sur without new pro (4220.) SEC. 17. If upon the death of either of several de- When suit to profendants or respondents, the interest of the deceased party viving defendants shall pass to the surviving defendants or respondents, the suit cess. may proceed against them 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. may be admitted Wife suit com when unmarried. (4221.) SEC. 18. When any action is brought by an unmar- When Husband ried woman, either alone or jointly with others, and she shall to prosecute with be married before final judgment, her husband may, on his menced by her own motion, be admitted as a party to prosecute the suit with 14 Mass., 295. her, and with the other plaintiffs, if there be any, in like manner as if he had originally joined in the suit. 11 do. 342. may be made co commenced before marriage. (4222.) SEC. 19. If a female defendant marry at any time when Husband before final judgment, her husband may, on his own applica- defendant in suit tien, or on the pplication of the plaintiff, be made a co-against Wife defendant in the suit; but if such husband be made a defendant on the application of the plaintiff, he shall have the same right to contest the fact of his marriage, as if the suit had been originally brought against him as husband of such female defendant. officer not to (4223.) SEC. 20. When an action is authorized or directed Death of public by law to be brought by or in the name of a public officer, or abate suit, etc. by any Trustee appointed by virtue of any statute, his death or removal shall not abate the suit, but the same may tinued by his successor, who shall be substituted for that pur be con When party becomes insane, ecuted or defend 13 Mass., 412. pose by the Court, and a suggestion of such substitution shall be entered on the record. (4224.) SEC. 21. If, during the pendency of any action, suit may be pros. either party shall become insane, the action may be proseed by Guardian. cuted or defended by his guardian, in like manner as if it had been commenced after the appointment of the guardian, or the Court may appoint a guardian to prosecute or defend the suit as the case may require. 5 Pick., 431. Proceedings in case of death of replevin, etc. (4225.) SEC. 22. In all actions of replevin, or in attachment, sole plaintiff in when the sole plaintiff shall die during the pendency of the suit, it shall be sufficient 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 be entered 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. Amendments, etc., on change of parties. (4226.) SEC. 23. In all cases provided for in this chapter, when any change of parties in the suit shall happen after its commencement, the Court may allow amendments of the declaration and other proceedings, and such suggestions to be entered on the record, as the circumstances of the case shall require. SECTION 4239. Order to take testimony before another Judge of Probate. 4240. Authority of such Judge. 4241. Testimony how authenticated, etc. 4242. To be filed; Evidence. 4243. Fees for taking testimony. OF TAKING THE TESTIMONY OF WITNESSES OUT OF THIS STATE. 4244. When commission to issue, etc. 4245. By whom may be ordered. 4246. Order to be filed, and to be subject to control of Court. 4247. Who to settle interrogatories. 4248. Interrogatories to be annexed to com mission. 4249. Directions on commission. 4250. How commission to be executed. 4251. Return by agent. 4252. If agent be sick or dead, etc., how returned. 4233. Filing commission and return. 4254. Return by mail. 4255. Parties may agree on mode of return. 4256. Return, etc., where to be kept. 4257. Examinations and deposition, etc., evi dence. 4258. Commissions to issue after interlocutory judgment. OF AFFIDAVITS TAKEN, AND OTHER JUDICIAL PROCEEDINGS HAD IN OTHER STATES AND FOREIGN COUNTRIES. 4259. Authentication of affidavits in other States, etc. 4200. Records, etc., of foreign Courts. 41. Copies thereof. 4202. Construction of preceding Sections. OF DEPOSITIONS TAKEN IN THIS STATE, TO BE USED IN COURTS OF OTHER STATES AND COUNTRIES. 4263. Testimony of Witnesses in this State, to be used in any other State or country, may be obtained. 4264. Summons to Witness. 4355. Contents of Summons. 4256. Proof required to obtain Summons, when no commission issued. 4267. Officer to take and certify testimony, etc. 4298. Lability of Witness for defauit. 4269. Fees of Witnesses. OF DEPOSITIONS TO BE USED IN JUDICIAL PROCEEDINGS IN THIS STATE, OR TO PERPETUATE TESTIMONY. 4270. Depositions to be used within this State. 4271. When may be taken. 4.2 Notice of taking depositions. 4273. Notice may be served on agent or Attor Dey. 4274. How service made; What time allowed. 427%. Notice may be waived. 4275. Deponent to be sworn. 477. Mode of examination of Witness. 478. Deposition to be in writing. SECTION 4279. Certificate to be annexed. 4280. Deposition how to be disposed of. 4281. When not to be used. 4282. Objections to competency of Witness. 4283. When depositions may be used on second trial. 4284. Courts may make rules as to opening de positions. 4285. When Witness may be compelled to give deposition. 4286. Commissioners to take depositions out of the State. 4287. Proceedings to perpetuate testimony. 4288. In what cases such proceedings may be taken. 4289. Certain Sections repealed. OF WITNESSES, THEIR PRIVILEGES, AND COMPELLING THEIR ATTENDANCE. 4290. Mode of serving Subpoenas. 4291. Liability for disobedience. 4292. Mode of serving Summons on Witnesses. 4293. Liability for disobedience. 4294. When Warrant to issue for Witness. 4295. When Witness to be imprisoned. 4296. Contents of Warrant. 4297. To whom Warrant to be directed. 4298. Qualification of preceding provisions. 4299. Witness exempt from arrest. 4300, 4301. To be discharged from arrest by Court, etc. 4302. Arrest to be void; Penalties for arresting Witness. 4303. No liability unless affidavit be made. OF DOCUMENTARY EVIDENCE, AND THE PRESERVATION THEREOF. 4304. Affidavits of publishing notices of application. 4305. Affidavits of publishing sales of Real Estate. 4306. Original affidavits and certified copies, to be evidence. 4307. Affidavit of Printer, etc., of publication of notices. 4308. Copies of proceedings, etc., how certified. 4309. Last Section qualified. 4310. All instruments except Wills, notes, etc., may be acknowledged or proved like Deeds. 4311. Certified copies of papers filed, etc., to be evidence. 4312. When certificate that Documents, etc., cannot be found, evidence of the fact. 4313. Certificate of Justices of the Peace of other States. 4314. Printed copies of Statutes of this State evidence. 4315. Printed copies of Laws, etc., of other States. 4316. Common Law of other States, how proved. 4317. When device by way of Seal, sufficient sealing. R. S. of N. Y., made; its tents. con OF TAKING TESTIMONY CONDITIONALLY, WITHIN THIS STATE. (4227.) 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. Affidavit to be (4228.) 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. ining Witness. (4229.) SEC. 3. If the officer to whom such application is order for exam. 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. (4230.) SEC. 4. The adverse party may show cause against when application proceeding 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. to be dismissed. to be taken. (4231.) SEC. 5. If no sufficient cause be shown, upon due when deposition 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. (4332.) SEC. 6. Such deposition shall be carefully read to Deposition to be and subscribed by such witness, shall be cortified by the signed and filed. 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. to be read in evi 7 Wend., 26. (4233.) SEC. 7. Such deposition, or a certified copy thereof, When deposition may be given in evidence by either party, on the trial of the dence. cause, or upon the assessment of damages therein by the Clerk or a jury, or by virtue of any writ of inquiry of damages, after it shall have been satisfactorily proved that such witness is unable to attend such trial or asssessment 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. be prevented. (4234.) SEC. 8. But the party against whom such deposition How reading may is to be used, may prevent the reading thereof, by satisfactory proof that sufficient notice was not given to enable him to |