right to be confronted with the wit-§ 10): The State v. Reidel, 26–430. nesses against him (Const. art. 1, nals: presump R. 4120. SEC. 3669. The future proceedings of all officers, and of all Inferior tribucourts of limited and inferior jurisdiction within this state shall, tion. like those of a general and superior jurisdiction, be presumed C. 51, 2512. regular, except in regard to matters required to be entered of record, and except where otherwise expressly declared. notice and return of personal service, Where several acts appear to have been done on the same day, they will be presumed to have been in the proper order to render all of them valid. Courts and officers are pre-v. Hayes, 22-11. sumed to act rightly: Hodge v. Ruggles, 36-42. Section applied: The State v. Lane, 26-223; Church v. Crossman, 49–444. court in saine county. Where it appears that there was SEC. 3670. The records and papers properly filed in a cause in Records of either the district or circuit court of a county, are equally evidence in the other court. Depositions taken for either court may 12 G. A. ch. 86, be used in the other with the same effect, subject to like objection, as if taken in such court. 29. HOW TESTIMONY IS TO BE PROCURED. Clerks to issue SEC. 3671. The clerks of the several courts shall, on application of any person having a cause or any matter pending in court, subpoenas. issue a subpoena for witnesses under the seal of the court, insert- R. 24012. ing all the names required by the applicant in one subpoena, which may be served by the sheriff, coroner, or any constable of the county, or by the party or any other person. When a subpoena is not served by the sheriff, coroner, or constable, proof of service shall be shown by affidavit; but no costs of serving the same shall be allowed. rected: duces SEC. 3672. The subpoena shall be directed to the person therein named, requiring him to attend at a particular time or place to To whom ditestify as a witness, and it may contain a clause directing the tecum. witness to bring with him any book, writing, or other thing under 101 his control, which he is bound by law to produce as evidence. C. '51, 2415. cases can be SEC. 3673. Witnesses in civil cases cannot be compelled to How far witattend the district or circuit court out of the state where they are nesses in civil served, nor at a distance of more than seventy miles from the compelled to place of their residence, or from that where they are served with attend. R. 4014. a subpoena, unless within the same county. No other subpoena C. '51, 2416. but that from the district or circuit court can compel his attendance at a greater distance than thirty miles from his place of residence, or of service, if not in the same county. This limitation as to distance does within the state: Westphal v. Clark, not apply to garnishees, who may be 42-371. compelled to attend from any distance May demand payment in SEC. 3674. Witnesses are entitled to receive in advance, if demanded, their traveling fees to and from the court, together with their fees for one day's attendance. At the commencement of advance. each day after the first, they are further entitled, on demand, to C. 51, 2417. receive the legal fees for that day in advance. If not thus paid they are not compelled to attend or remain as witnesses. R. 2 4015. Penalty for failure to obey. R. 4016. 51,2418. Same. C. '51, 2419. When witness conceals him officer. SEC. 3675. For a failure to obey a valid subpoena, without a sufficient cause or excuse, or for a refusal to testify after appearance, the delinquent is guilty of contempt of court. He is also liable to the party by whom he was subpoenaed for all consequences of such delinquency, together with fifty dollars additional damages. SEC. 3676. Before a witness is thus liable for a contempt for not appearing, he must be served personally with the process, by reading it to him, and by leaving a copy thereof with him, if demanded, and it must be shown that the fees and traveling expenses allowed by law were tendered to him, if required; or it must appear that a copy of the subpoena, if left at his usual place of residence, came into his hands, together with the said fees and traveling expenses above mentioned. SEC. 3677. If a witness conceal himself, or in any other manner attempt to avoid being personally served with a subpoena, self: power of any sheriff or constable having the subpoena, may use all necessary and proper means to serve the same, and for that purpose may break into any building or other place where the witness is to be found, having first made known his business and demanded admission. R. 4018. C. '51, 2420. Prisoner. R. 4019. SEC. 3678. A person confined in any prison in this state, may, by order of any court of record, be required to be produced for oral examination in the county where he is imprisoned, and in a criminal case in any county in the state; but in all other cases his examination must be by a deposition. A defendant in a criminal action | under an order of court, but the possesses no absolute right to demand exercise of the power here given to the personal attendance of a convict the court is discretionary with it: The in the penitentiary or county prison S ate v. Kennedy, 20–372. SEC. 3679. While a prisoner's deposition is being taken, he Deposition of shall remain in the custody of the officer having him in charge, R. 24020. who shall afford reasonable facilities for the taking of the depositions. Persons authorized by laws of other of. SEC. 3680. When by the laws of any other state or country, testimony may be taken in this state to be used in the courts of such state or country, and also in all cases herein provided for states: power taking depositions, the persons authorized to take such depositions have power to issue subpoenas and compel obedience thereto, to administer oaths, and to do any other act of a court which is necessary for the accomplishment of the purpose for which they are acting. R. 2 4021. C '51, 2477. SEC. 3681. Subpoenas issued by them are valid to the same extent as those emanating from a justice's court, and may be served and returned in the same manner. SEC. 3682. Any sheriff or constable, when called upon for that purpose, shall serve such subpoenas and make return thereof. SEC. 3683. In addition to the above remedies, if a party to a suit in his own right, on being duly subpoenaed, fail to appear and give testimony, the other party may, at his option, have a continuance of the cause as in cases of other witnesses, and at the cost of the delinquent. SEC. 3684. Or if he shows by his own testimony or otherwise, that he could not have a full personal knowledge of the trans action, the court may order his pleading to be taken as true; such order, however, is subject to be reconsidered during the term of the court, upon satisfactory reasons being shown for such delinquency. The pleading is not to be taken as | tion make an order to that effect: true, unless the court upon applica- | Hay v. Frazier, 49–454. PRODUCTION OF BOOKS AND PAPERS. R. 2 4026. SEC. 3685. The district or circuit court may, by rule, require When and how the production of any papers or books which are material to the done. just determination of any cause pending before it, for the purpose C. '51, 2423. of being inspected and copied by or for the party thus calling for them. The granting of the rule requiring | the discretion of the court: Allison v. the party to produce papers, lies in Vaughan, 40–421. C. '51, 2424. SEC. 3686. The petition for that purpose must state the facts Petition. expected to be proved by such books or papers, and that, as the R. 4027. petitioner believes, such books and papers are under the control of the party against whom the rule is sought, and must show wherein they are material. The rule shall thereupon be granted to produce the books and papers, or show cause to the contrary, if the court deems such rule expedient and proper. SEC. 3687. On failure to obey the rule, or show sufficient Consequences cause for such failure, the same consequences shall ensue as if the of failure to party had failed to appear and testify when subpoenaed by the ob party now calling for the books and papers. the R. 24028. C. '51, 2425. Writing called SEC. 3688. Though a writing called for by one party is by other produced, the party thus calling for it is not obliged to use for by one it as evidence in the case. party. DOCUMENTARY EVIDENCE. SEC. 3689. An affidavit is a written declaration under oath, Affidavit. made without notice to the adverse party. R. 4030. SEC. 3690. An affidavit may be made within or without this Before whom state before any person authorized to administer oaths. [The word "oaths," in the last line, is "them" in the original, but is here retained as in the printed code, as probably inserted by the editor by way of correction.] made. R. 24035. R. 4036. SEC. 3691. Affidavits taken out of the state before any judge Out of the or clerk of a court of record, or before a notary public, or a com- state. missioner appointed by the governor of this state to take acknowl- C. 51, ¿ 2475. edgment of deeds in the state where such affidavit is taken, are of the same credibility as if taken within the state. The fact that the officer before | oaths may be established aliunde : whom an affidavit is made, out of the Levy v. Wilson, 43-605. state, is authorized to administer How com SEC. 3692. When a person is desirous of obtaining the affidavit of another who is unwilling to make the same fully, he may pelled. apply to any officer competent to take depositions as herein R. 4038, declared, by petition, stating the object for which he desires the affidavit. C. '51, 2480. Same. C. '51, 2481. Notice. C. '51, 2482. atories. SEC. 3693. If such officer is satisfied that the object is legal and proper, he shall issue his subpoena to bring the witness before him, and if he fails then to make a full affidavit of the facts within his knowledge to the extent required of him by the officer, the latter may proceed to take his deposition by question and answer in writing in the usual way, which deposition may afterwards be used instead of an ordinary affidavit. The party subpoenaed cannot be ex- | brought, nor the witness, is allowed cused from making the affidavit or to determine that fact in advance. answering the questions, on the A failure to respond to the subpoena, ground that th allidavit desired or to answer when brought before the would not be legally admissible in officer, may be punished as a conthe proceeding for which it is sought. tempt: Robb v. McDonald, 29–330. Neither the officer before w.om he is SEC. 3694. The officer thus applied to may, in his discretion, require notice of the taking of such affidavit or deposition to be given to any other person interested in the subject matter, and allow him to be present and cross-examine such witness. SEC. 3695. The court or officer to whom any affidavit is preCross interrog- sented as a basis for some action, in relation to which any discretion is lodged with such court or offi er, may, if deemed require the witness to be brought before some proper officer and subjected to cross-interrogatories by the opposite party. R. 2 4041. C. '51, 2483. Similar provision; see § 2913. proper, SEC. 3696. The signature and seal of such of the officers herein Signature and authorized to take depositions or affidavits as have a seal, and the seal: presump- simple signature of such as have no seal, are presumptive evidence of the genuineness of such signature as well as of the official capacity of the officer, except as herein otherwise declared. tion. C. '51, 2476. how proved. SEC. 3697. Publications required by law to be made in a newsPublications: paper, may be proved by the affidavit of any person having knowledge of the fact, specifying the times when, and the paper in which, the publication was made. But such affidavit must, for the purposes now contemplated, be made within six months after the last day of publication. Posting up C. '51, 2428. Other facts. R. 2 4044. C. '51, 2429. ated. R. 2 4045. As to proof of publication of orig- I inal notice, see § 2620, and note. SEC. 3698. The posting up or service of any notice or other paper required by law, may be proved by the affidavit of any competent witness attached to a copy of said notice or paper, and made within six months of the time of such posting up. SEC. 3699. Any other fact which is required to be shown by affidavit, and which may be required for future use in any action or other proceeding, may be proved by pursuing the course above indicated, as nearly as the circumstances of the case will admit. SEC. 3700. Such proof so made may be perpetuated and preHow perpetu- served for future use, by filing the papers above mentioned in the office of the clerk of the circuit court. And the original affidavit appended to the notice or paper, if there be one, and if not, the affidavit by itself, is presumptive evidence of the facts stated therein, but does not preclude other modes of proof now held sufficient. MAPS, PLATS, RECORDS, ENTRIES. plats. SEC. 3701. A copy of the field-notes of any surveyor, or a plat Field notes and made by him and certified under oath as correct, may be received R. 4046. as evidence to show the shape or dimensions of a tract of land, or C. '51, § 2431. any other fact whose ascertainment requires only the exercise of scientific skill or calculation. tries. SEC. 3702. Duly certified copies of all records and entries, or Copies of recpapers belonging to any public office, or by authority of law filed ord and ento be kept therein, shall be evidence in all cases of equal credibility R. 4047. with the original record or papers so filed. A certified copy of a paper in the auditor's office, but which is not authorized by law to be kept there, is not receivable in evidence: Morrison v. Coad, 49-571. Section applied: Bellows v. Todd, 34-18, 26. C. '51, 2432. nal entries. SEC. 3703. The recorder in each of the several counties in this Books of origistate, shall cause to be procured a book, entitled "copies of origi- R. 4048. nal entries,” to be kept as a record in his office, in which shall be copied a list of the original entries of land within his county, with name of the person or persons entering the same and the date of such entry, for which he shall receive a reasonable compensation, to be audited and allowed by the board. of supervisors of his county. Copies of. SEC. 3704. Said book, containing a copy of such entries, when compared with the originals, and certified to as true copies by the R. 4049. register of the land office at which such original entries were made, shall be deemed a matter of record, and certified copies thereof under the hand of said recorder may be received and read in evidence in all the courts in this state, with like effect as other certified copies of original papers recorded in his office. SEC. 3705. Said recorder shall, from time to time, as he may same. deem it necessary, procure in the same manner copies of any addi- R. & 4050. tional entries, under the same restrictions and with like effect until all the lands in his county shall have been entered, and certified copies of the entries thereof procured. copies. SEC. 3706. Every officer having the custody of a public record Officer to give or writing is bound to give any person, on demand, a certified R051. copy thereof on payment of the legal fees therefor. C. 51. 2433. surveyor gen R. 4052. SEC. 3707. Copies of all maps, officia letters, and other docu- Copies, maps, ments in the office of the surveyor-general of the United States, etc.. in office of when certified to by that officer according to law, shall be received eral. by the courts of this state as presumptive evidence of the existence of the originals and that said copies are copies of the original, notwithstanding such maps, official letters, or other papers, may themselves be copied. to loss of SEC. 3708. The certificate of a public officer that he has made Certificate as diligent and ineffectual search for a paper in his office, is of the paper. same efficacy in all cases as if such officer had personally appeared C. 51, 22434. and sworn to such facts. SEC. 3709. The usual duplicate receipt of the receiver of any Duplicate reland office, or if that be lost or destroyed, or beyond the reach of celer the party, the certificate of such receiver that the books of his office. office show the sale of a tract of land to a certain individual, is C. 51, 2435. ceiver of land R. 2 4054. |
