parties to

books, etc.

Sec. 3. Be it further enacted, That all courts of May require record shall have power in any action depending produce before them, on motion and sufficient cause shown by affidavit, and due notice thereof having been given to the adverse party, by the party praying for such order, to make an order, requiring the parties or either of them to produce books or writings in their possessions or their power, which contain evidence pertinent to the issue, and on failure thereof (if no sufficient cause shall be assigned, to the satisfaction of the court) the party praying such rule shall be permitted to give parol or other evidence of the contents of such books, papers or documents, any law or usage to the contrary notwithstanding.

on failure, mitted to evidence,

party per

give parol

etc.

Two associempowered

ate judges

to take dep

ositions,

Sec. 4. Be it further enacted, That any two associate judges of the court of common pleas in their respective counties, may take the deposition, in writing, of any person resident therein to perpetuate the remembrance of any fact, matter or thing; and the said associate judges, before whom such deposition is to be made, shall cause such person or persons, whom they know to be interested, either directly or indirectly, or otherwise affected by such deposition, if within their county, to be duly notified of the time and place and to give of the caption, and if without the county, his or their attorney, if any they have, who shall be at liberty to interrogate and cross-examine such deponent, and all such questions and answers shall be reduced to writing and included in such deposition, and the deposition being reduced to writing by one of the associate judges or by the deponent, in their presence and subscribed, the Depositions said associate judge shall administer an oath and certify the caption, and the same deposition shall,

notice.

taken to be evidence.

and used as

Proviso.

within sixty days be recorded within the office of the recorder of deeds in the county where the land lies, if the deposition respects real estates, and if the same respects personal estates, then in the office of the clerk of the court of common pleas of the said county where the same shall be taken, and such certificate shall be made on the deposition, and the same deposition, so certified or a copy of the said record, may, in case of the death of such deponent, absence out of the state or inability to attend the court as aforesaid, be used as evidence in any cause to which it may relate: Provided, That nothing in this section contained, shall be so construed as to prevent any and all legal exceptions being made and allowed to the reading of such depositions, on any trials at, law or in equity, in which the same may be introduced as evidence.

Sec. 5. And be it further enacted, That the act entitled, "An act, concerning testimony," passed the thirteenth day of January, one thousand eight hundred and two, be and the same is hereby repealed.

This act to take effect and be in force, from and after the first day of June next.

JOHN SLOANE,

Speaker pro tem. of the house of representatives.

DANIEL SYMMES,

Speaker of the senate.

February 11, 1805.

CHAPTER XV.

An act, providing for the execution of real contracts, in certain cases.

court of pleas em

common

powered to

certain con

petition and

proof.

. Sec. 1. Be it enacted by the general assembly of the state of Ohio, That if two or more persons, who heretofore have held or who hereafter may complete hold lands as coparceners, joint tenants or tenants tracts, on in common, have heretofore or shall hereafter become obligated for the sale and conveyance of the same or of any part thereof, or if any one or more of the said coparceners, joint tenants or tenants in common, after the said contract and before the conveyance of the land so contracted for, hath or have died or shall die, it shall be lawful for the survivor or survivors, to present a petition to the court of common pleas of the county in which the land so contracted for, may or shall be situated, setting forth the facts relative to the said contract and praying for an order for the execution thereof, and if it shall appear to the said court, by good and sufficient testimony, that such contract hath been made and hath been fully complied with on the part of the purchaser or purchasers, or that the said purchaser or purchasers is or are then ready to comply with the said contract, according to the terms thereof, so that he or they hath or have a full right to demand and receive a conveyance of the said land, or any part thereof, it shall be lawful for the said court of common pleas to make an order, authorizing and empowering the said survivor or survivors to complete the said contract, by conveying the land so contracted for and the deed so made and executed, by virtue of the order aforesaid, shall con

Requisites required in

vey, as complete and perfect a title and shall, in all respects, have the same effect as if the said deed had been executed by all the said coparceners, joint tenants or tenants in common.

Sec. 2. Be it further enacted, That the said the petition. petition shall recite the names of all the contracting parties, the situation, quantity and description of the land so contracted for, and the time of making such contract, and the deed to be made, by virtue of the order aforesaid, shall recite the said order; and it shall be the duty of the clerk of the said court, to record the said petition at length and the order thereon granted.

Party to contract

dying, leaving heir under

twenty-one

tor on filing

petition,ete

to be vested with power

to complete

contracts.

Sec. 3. Be it further enacted, That if any person or persons, who have or shall enter into any contract for the sale and conveyance of land or years, execu- other real property, and before the completion of such contract on his, her or their part, have or shall die, leaving heirs under the age of twentyone years, and the executor or executors, administrator or administrators, or other legal representatives of such person or persons so deceased, or who may hereafter die, may or shall be desirous of completing such contract or contracts, for and on behalf of such minor children and heirs, such executor or administrator, or other legal representative, may petition the court of common pleas of that county in which the land or other real property shall be situated, particularly stating the contract, in like manner as is provided in the case of a survivor or survivors, and the same orders and regulations shall be made and pursued as is herein above provided and pointed out in case of a survivor or survivors, and upon sufficient proof

of such contract having been made and entered into being given, to the satisfaction of the said court, an order of court shall be made, authorizing and appointing the executor or executors, administrator or administrators, or other legal representatives of such deceased person, or such other person as the said court of common pleas may deem suitable and proper, fully to complete the said contract or contracts of such deceased person or persons, and to make and execute a deed or deeds of conveyance for and on behalf of the heir or heirs of such deceased person or persons, according to the terms and stipulations of such contract or contracts, and the person or persons so authorized by the said court of common pleas as aforesaid, shall pursue the same rules in making a conveyance as are provided in the case of a survivor or survivors, and such conveyance, when made according to the provisions of this act, shall be binding upon the heirs and all other persons interested, in the same manner as though the conveyance had been made by the person or persons making such contract or contracts, in his or their lifetime.

Conveyance

made by or

der of court

to be bind

ing.

court to seties their

cure to par

just propor

tion.

Sec. 4. Be it further enacted, That it shall be the duty of the said court, before the granting of the order aforesaid, to secure or cause to be secured, to and for the benefit of the estate or estates of the said deceased party or parties, their just part and proportion of the consideration of the said contract, and the person petitioning for such order shall pay to the clerk of the said court, for making the necessary entries, the sum of compen twenty-five cents, and if the said order be granted, clerk. the further sum of ten cents for every hundred words contained in the said petition and order, for recording the same.

sation to