When party becomes insane, ecuted or defend 13 Mass., 412. 5 Pick., 431. 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. 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. 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 commission. 4249. Directions on commission. 4250. How commission to be executed. 4251. Return by agent. 4252. If agent be sick or dead, etc., how returned. 4253. 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. 4260. Records, etc., of foreign Courts. 4261. Copies thereof. 4262. 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. 4265. Contents of Summons. 4266. Proof required to obtain Summons, when no commission issued. 4267. Officer to take and certify testimony, etc. 4268. Liability 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. 4272. Notice of taking depositions. 4273. Notice may be served on agent or Attor ney. 4274. How service made; What time allowed. 4275. Notice may be waived. 4276. Deponent to be sworn. 4277. Mode of examination of Witness. 4278. Deposition to be in writing. SECTION 4279. Certificate to be annexed. 4280. De position how to be disposed of. 4281. When not to be used. 4282. Objections to competency cf Witness. 4283. When depositions may be used on second trial. 4284. Courts may make rules as to opening depositions. 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. 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, (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. etc., on change of parties. sidence of order to use against when application such witness e is not sick, xamination is on the trial of own, the officer to be dismissed. hown, upon due when deposition of the affidavit icer granting the such witness, and on shall be inserted 8, which either of the rein. to be taken. I be carefully read to Deposition to be all be certified by the signed and filed. ten days thereafter, shall ourt in which such action to be read in evi 7 Wend., 26. , or a certified copy thereof, when deposition ther party, on the trial of the dence. t of damages therein by the of any writ of inquiry of damn satisfactorily proved that such ach trial or asssessment of damages › death, insanity, sickness, or settled continued absent out of this State, so uch trial or assessment could not be ary process of law. the party against whom such deposition How reading may event the reading thereof, by satisfactory be prevented. t notice was not given to enable him to R. S. of N. Y., may be taken. OF TAKING TESTIMONY CONDITIONALLY, WITHIN THIS STATE. When depositions (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 made; its contents. (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. |