[S 4, 5. Same as § 5, 6 R. S. Original note to § 5. "New; the latter part to remove the difficulties noticed in 11 J. R., 199."

[$ 6. Same as $7 R. S.] Original note. "§ 3 varied, in requiring the defendant to appear and put in bail. This will avoid all the questions that arise upon the complicated practice of putting in bail in the court above, and awarding a procedendo."

[S 7. Same as § 8 R. S.] Original note. "New, to prevent a vexatious and unjust practice of delaying the presentation of a certiorari, until after the plaintiff has incurred all the expenses of preparing for trial, and has probably attended several days with his witnesses."

[$ 8, 9. Same as § 9, 10 R. S., except that the words "before he shall be bound to file the same," were stricken from the end of the latter section by the legislature.]

Original note. "New."

[S 12. Same as § 14 R. S.]

Original note. "It has been an object in framing this Article, to avoid the perplexities, delay and injustice that frequently arise from the present practice. Among other consequences of a removal by habeas corpus, it has been decided that a defendant may plead or set off a demand which he has acquired after removing the cause! 18 J. Rep., 493; and the plaintiff may declare for a totally different cause of action; 8 J. Rep. 81. So that either party may be prevented by the other from trying the question for which the action was brought, or may be subjected to costs, without the least default on his part. For the costs of the suit in the court below, invariably follow the judgment in the supreme court."

[S 13, 14. Same as § 15, 16 R. S.] Original note to § 13. "§ 5, 1 R. L., 142, extended." To § 14. "New; intended to reach the case of appeals from justices' courts, and other appeals, to courts of common pleas."

"TITLE III.-Of evidence."

"ARTICLE I.-Of taking, conditionally, the testimony of witnesses within this state." [S8, 9. Same as § 9, 10 R. S.]

Original note. "In England, a witness cannot be examined de bene esse, without the consent of both parties, Tidd, 724. But our supreme court seem to have established a different rule, at a very early period, 1 John. Cas., 147. It has been recently recognized in 7 Cowen, 63, 69 and 489. Without inquiring into the power to vary such a principle of the common law, it is yet evident that the subject requires legislative provision, not only to remove all doubt, but to afford those checks and guards, which are essential to the protection of the rights of all parties. The details of the preceding sections are taken from the cases cited, and from the act to perpetuate testimony in certain cases, 1 R. L., 455, with such variations as the subject seemed to require."

"ARTICLE II. Of taking the testimony of witnesses out of this state."

[S 10. Same as § 11 R. S., except that the words "being a court of record," were inserted by the legislature.] Original note. "§ 11, 1 R. L., 539, varied to conform to subsequent statutes, and also giving a discretion as to the number of commissioners. In many cases one is sufficient, and the addition of more only creates unnecessary expense."

[S 11, 12. Same as § 12, 13 R. S.] Original note. "The two last sections are proposed with a view to diminish the non-enumerated business of the court, and to expedite causes. The cases in which, and the terms upon which, commissions are issued, are so familiar, that there can be no danger in vesting the power of allowing them, as here proposed."

Original note to § 17. "§ 11, the commission may be re

[S 13 to 17. Same as § 14 to 18 R. S.] varied by enlarging the cases in which ceived from another besides the agent." [S 18 to 21. Same as § 19 to 22 R. S.] the event of a change of venue, it may be necessary to remove the return."

Original note to § 21. "In

[S 22. Same as enacted § 23 R. S. except that the words "or an exemplification thereof when the originals are filed in any other county than that in which the cause shall be tried;" and the words "or credibility," were inserted by the legislature.]

66

Original note. "§ 11, extended so as more definitely to express what might be implied from the present statute, that the effect of the testimony is the same as if the witness had been examined viva voce, and of course that his competency, and the propriety of every question put to him, were open to objection. The supreme court, in 6 Cowen, 416, seem to give a different construction to the statute, and to hold that a party is concluded by the interrogatories as settled by the judge. The consequence would be, that a party must submit to have a proper question struck out, or an improper one admitted, or he must appeal to the court from the order of the judge. A delay is thus produced that may sometimes be fatal, expense is incurred, and the court will be called on to decide a question prematurely, and without a knowledge of the whole case, which may involve the whole merits of the cause. No inconvenience is anticipated from reserving such questions for the trial, but on the contrary it is believed justice will be promoted."

[$ 23. Same as § 24 R. S.] Original note. "To supply an existing defect."

“ARTICLE III. — Of affidavits taken, and other judicial proceedings had in other states and foreign countries."

[S 24. Same as § 25 R. S.]

Original note. "In proceedings under our insolvent laws and against absconding debtors, and in other cases, ex parte affidavits of non-residents are allowed. There is no existing provision respecting the mode of authenticating them. The preceding is substantially like the act of congress, 2 vol. Laws U. S. 102, varied only by requiring a seal in all cases. The same provision is necessary for affidavits taken in the neighboring provinces, and no objection occurs to extending it to all foreign countries."

[S 26. Same as enacted.]

Original note. "In the constant intercourse caused by our extensive commercial relations, it has become a matter of great importance that some specific mode of authenticating the records of foreign courts should be prescribed. The preceding is conformable to the opinion

of Ch. J. Marshall, in 2 Cranch, 238, with the addition of some details which are calculated to prevent abuse."

[S 27, 28. Same as enacted.] Original note to § 27. "Conformable to 7 J. R. 514, and 3 Mass. Rep. 273." To § 28. "The case in 2 Cranch, 238, shows that there may be other modes of proof, according to the exigency of the case, which it is proposed to leave as they stand, and also to leave the effect of such proof as may be from time to time declared by the courts."

"ARTICLE IV.

Of depositions taken in this state, to be used in courts of other states and countries."

[S 29, 30. Same as enacted, except that in § 30, the words " or any judge of the county courts of any county," were substituted by the legislature for "or the first or senior judge of the county courts of any county,' as reported.] Original note to § 30. "1 R. L. 49, extended to cases where a commission is issued, as being of more frequent occurrence, and more necessary, than the case provided for in the statute."

"ARTICLE V. Of proceedings to perpetuate testimony."

[S 33. Same as enacted.] Original note. "1 R. L. 455, § 1, extended to all cases. As the proceedings are at the expense of the applicant, and the testimony can not be used, if the witness can be produced, no possible objection is perceived to allowing such measures of precaution to be adopted in every case."

[S 34. Same as enacted.]

Original note. “The 3d subdivision is in place of § 6, p. 458, which seems too general, for it deprives infants of the benefit of the statute in all cases. When they are actually parties in court, in a suit commenced, no reason is perceived why testimony may not safely be perpetuated. It is only in cases where they may be anticipated parties, that there can be any danger."

IS 35, 36, 37. Same as enacted.] Original note to § 37. "Partly

new."

[S 38, 39, 40, 41. Same as enacted.] Original note to § 38. "New." "ARTICLE VL― Of witnesses, their privileges, and compelling their attendance."

IS 49, 50. Same as § 42, 43 R. S. except that the words "and legal" after the word "reasonable," in § 50, were stricken out by the legislature.] Original note to § 50. “1 R. L. 524, § 20, slightly varied.” [$ 53 to 57. Same as § 46 to 50 R. S.] Original note to § 46. "Extended to all cases.' To 57. "Provision on this subject is made in the justice act, Chap. 2, Third Part."

[$ 58, 59. Same as § 51, 52 R. S.] Original note to § 58. “Declaratory.' To $ 59. "Declaratory as to the court; as to the officer and judge, obviously necessary."

[$ 60, 61. Same as § 53, 54 R. S.] Original note. "Partly declaratory and partly new."

"ARTICLE VII. — Of documentary evidence, and the preservation thereof."

[$ 62, 63, 64. Same as § 59, 60, 61.]

Original note. "The preceding sections are an extension of the provisions of the act concerning sales under mortgages, § 7, 1 R. L., 374, to all similar cases; such as sales in partition, under orders of surrogates, decrees, &c., and applied also to other cases where the publica-.

tion may be material, such as against absconding debtors, foreign corporations, &c., when the time of publication determines rights."

[$ 65, 66, 67. Same as § 59, 60, 61 R. S.] Original note to § 65. "Declaratory." To § 67. "Title 8, Chap. 8, Part 1 R. S. and various other provisions made general."

[S 68. Same as § 62 R. S.] Original note. "It is perhaps difficult to determine whether an impression on paper alone, by an individual, is a seal. It ought to be declared. See 5 J. Rep. 239."

[S 69 to 72. Same as § 63 to 66 R. S. except the concluding words of the last §, which were reported "upon payment of 3 cents for each paper examined."

Original note. " Individuals frequently have the possession of papers, which are of no use to themselves, but may be of great value to others. By providing a public and safe place for their deposite, it is believed that many valuable muniments of title will be collected, and documents essential to the protection of individual rights will be preserved, while the holders of them will thus be relieved of a burden, and discharge a duty which they owe to community. With these views, the four last sections have been prepared."

[S 73, 74, 75, 76. Same as $ 67, 68, 69, 70 R. S.] Original note. "It is believed that the preceding sections will afford an opportunity for the safe deposite of wills, which will be embraced by many, and fraud and contention may thus be prevented."

“ARTICLE VIII.— Of the examination of witnesses'; of certain rules of evidence, and of evidence in certain cases."

[S 77. Same as § 71 R. S.]

Original note. "The question presented in this section, is much vexed in this state, and seems to require positive legislative enactment, to put it at rest; vide 7 Cowen, 178. In England, in the case of Lord Melville, reported at large in 1 Hall's Am. Law Journal, 223, the opinion of eight judges and the chancellor against that of four judges, was, that a witness was bound to answer. A declaratory act was, however, passed, 46 George III, ch. 37, from which the preceding section is taken. In Pennsylvania and Kentucky, the rule is as proposed in this section. 4 Serg. & R. 399; 3 Littel's Rep. 221.”

[$ 78. Same as § 72 R. S.]

Original note. "In a case which occurred some years since in the court of sessions in New York, at which De Witt Clinton presided, it was held that auricular confessions made to a Catholic priest, were not to be divulged. Although contrary to the principle of the English decisions (see 4 Term Rep. 579-80), this decision is believed to have received general approbation in this country. It was admitted and recognized by Justice Van Ness, in the case of Christian Smith, reported in 2d City Hall Recorder, p. 80; and a distinction taken between such confessions as were made in the course of discipline, and such as were made to a clergyman as an adviser and friend. The rule is too important to be left in its present state, and it is therefore proposed to give it the sanction of legislative authority.”

[$ 79. Same as § 73 R. S.]

Original note. "In 4 Term Rep. 580, Buller, J. (to whom no one will attribute a disposition to relax the rules of evidence), said it was

'much to be lamented' that the information specified in this section was not privileged. Mr. Phillips expresses the same sentiments in his Treatise on Evidence, p. 104. The ground on which communications to counsel are privileged, is the supposed necessity of a full knowledge of the facts, to advise correctly, and to prepare for the proper defence or prosecution of a suit. But surely the necessity of consulting a medical adviser, when life itself may be in jeopardy, is still stronger. And unless such consultations are privileged, men will be incidentally punished by being obliged to suffer the consequences of injuries without relief from the medical art, and without conviction of any offence. Besides, in such cases, during the struggle between legal duty on the one hand, and professional honor on the other, the latter, aided by a strong sense of the injustice and inhumanity of the rule, will, in most cases, furnish a temptation to the perversion or concealment of truth, too strong for human resistance. In every view that can be taken of the policy, justice or humanity of the rule, as it exists, its relaxation seems highly expedient. It is believed that the proposition in the section is so guarded, that it cannot be abused by applying it to cases not intended to be privileged."

[S 86. Substantially same as § 74 R. S.]

Original note. "The practice, as now firmly established, see 20 John. Rep. 144, allows a party to the action, to prove the loss of an instrument by his own oath. In cases of notes, and other evidences of debt, the only receipt which the debtor often thinks is necessary to take, is the destruction of the instrument. In such cases, and in many others, the oath of the opposite party may explain the apparent loss. At all events, it seems but just to afford the same opportunities to both parties equally, to be examined on oath."

[S 87. Substantially same as § 75 R. S. § 88. Same as § 76 R. S.] Original note. "The case of Rowley vs. Ball, in 3d Cowen, 312, shows the necessity of the above provision. The only remedy of the loser of the note, is by an application to the court of chancery, merely because that court has the power to require an indemnity, which the common law courts do not possess. No reason is perceived why these courts are not as competent to the execution of such a simple power, as the court of chancery."

[S 94. Same as § 79 R. S.]

Original note. "The courts have been long struggling against technical and immaterial variances, see John. Dig. Pleading, II. i. and V. f. where the cases are collected. It is a reproach to the practice of the law, more sensibly felt by the community at large, probably, than any other defect, that parties are turned out of court upon frivolous objections for mistakes and variances. The above section is proposed to confer directly upon the courts, the power to avoid such consequences, to prescribe a plain and practical rule for their discretion, and somewhat to enlarge their authority."

[S 95, 96. Same as § 80, 81 R. S.]

Original note. "The question presented in the first of the two last sections, is involved in much doubt, see 11 East. 578; 3d Day, 493; 3d Cow. 623. The rule proposed seems most just. The last section