The Hawaiian gazette., 1876-11-01

lUhl but eAdI1lunUl uepOucnl 10 cuCu pdTlly Ut
is beyond the Jurisdiction of the court or is resi-
dent in another circuit or dead, or unable from
permanent sickness or other permanent inirmty
to attend, in all or any OF which cases. the exam
nations aud depositons certified under the hand
of the commissioners or other person taking the
same, shall aud may without proof OF the sigma
ture 10 such certificate be received and read in
evidence saving all just exceptions.
Sec l2. On the trial of any issue Joined or
Of any matter or question or on an equiry arising
in any suit, action or proceeding in any court or
before any person having by law or By consent
| Of parties authority TO bear receive and examine
evidence, any person who may happen to be
present, and who by virtue OF this Act is compe-
tent to give evidence may be called. and re-
quired to give evidence and to produce any
document, and il any such person when called
aud required as aforesaid, shall not appear and
give evidence aud (il then able so to do) produce
the document, he shall be subject to the same
proceedings and liabilities as if had been duly
served with writ OF subpoena, dd teStycdndlm
! or dHceS fecun. or a summons, Or other process
and had received his conduct money aud pay
ineut for expenses and loss Of time.
Sec. IL. Either party to any suit or action
depending 10 any Court Of Record, may call on
the party by notice, to admit any fact or docu-
ment, saving all just exceptions; and every such
notice and admission respectively may be in the
form contained in the first and second schedules
to this Act. or to the like effect; and 10 case of
refusal neglect to admit, the costs of providing
the fact or document shall Ue paid by the party
so ueglectiug or refusing whatever the result Of
the case may be, uuless at the hearing, trial or
enquiry the judge shall certify that the refusal to
admit was reasonable and no costs Of providing
any document shall be allowed unless such notice
/ be gwen, except IN cases where the omission 20
give the notice is in the opinion Of the court or
presiding Judge at the trial OF the cause, a
saving OF expense.
Sec. IA An affidavit of the attorney, soIici-
tor or ugent in the cause or his clerk, of the due
signature of any admissions made in pursuance
OF such notice aud annexed TO the affidavit shall
be in all cases sufficient evidence Of such admis-
sions; aud au affidavit OF the attorney. solicitor
or agent in the cause. his clerk, of the service
of any notice to produce 10 respect of which no
tice TO admit shall been given aud of the time
when 1t was served, with copy OF such notice
to produce, annexed to such affidavit, shall be
| sufficient evidence Of the service Of the original
| Of such notice, aud Of the time when it was
served.
Sec. Is. When q witness whose testimony is
wanted in any civil cause pending in this King.
! dom, shall live on another Island from that on
which the trial is to be held, or shall be about to
| 90 out OF the Kingdom, and not to return in time
Tor the trial, or is sick, infrm aged as to
make it probable that he will not he able to ut
tend at the trial, his depOsiIious may be taken
in the manner hereinafter prescribed, at the op-
;iou of the party instead OF by commission as
herelnbeIore provided.
! See l6 At any time after the cause is COM
menced by the service of process, or after 1t is
submitted to arhltrators or referees, either party
may apply TO any District Justice Or any Circuit
Judge, or any clerk Of Court Of Record, who
! shall issue q notice to the adverse party to aD-
pear before the said District Justice Circuit
Judge or clerk of Court of Record at the time
and place appointed tor taking the deposltions
and 10 put such interrogatories as be may think
| fit.
Sec. II. The said notice shall be served on
the agent or attorney of the adverse party; and
shall have the same effect as if served on the
party himself
See Is. If there are several parties on either
side of the cause plaintiffs or defendants, Il no.
tice served on either Of them shall be sufficient
Sec. l9. The notice shall be served by leav-
ing copy thereof at the place of abode of the
person to be notified allowing in all cases not
less than twenty-lOur hours after such notice. be-
fore the time appointed for taking the deposit
tions. and not less than one day additional, ex-
elusive of Sundays or every twenty-five miles OF
travel of the oppC party if he shall live more
than twenty-five miles from the place Of taking
the deposition.
Sec 20. The deponent shall be sworn or af-
irned to testify the truth, the whole truth, and
nothing but the truth, relating to the cause for
which the deposition is taken. and shall then be
examined by the District Justice, Circuit Judge
or clerk as aforesaid or by tile parties, and his
testimony shall be taken in writing. The exami-
IN chalt ha t-ithar varita uVr tutar
rogatories.
Sec. 81 The deposition shall be written ny
the officer before whom the deposition is taken,
or by some impartial person 0y him appointed,
in the presence aud under the direction Of the
said officer, and shall be carefully read to or by
the deponent, aud shall then be subscribed by
him.
Sec. % The officer taking the deposition
shall annex to the deposition certificate Of the
time and manner of taking it, the person at
whose request, and the cause or suit Tor which it
was taken, and stating also whether the adverse
party attended. and if not, stating the notice if
any that was given TO him.
Sec. 23 The deposition shall be delivered by
the officer taking the same to the court, arbi-
traitors, or referees before whom the cause is
peniing, or shall be encloseu and sealed and di-
rected to them, and shall remain sealed until
opened by the direction Of any Justice Of the
said court, arbltrators or referees.
Sec. "a Every objection to the competency
or credIbility of the depOnent and to the pro-
prety of any questions put TO him; or any an
swers made by him. may be made when the de-
position is produced in the same manner as il
the witnesses were personally present and ex.
amined at the trial and the court shall have
the authority to order any testimony which is
deemed inadmlssibe to be expunged. provided
that if any deposition is taken upon written in
terrogatories, all objections TO an interrogatory
shall be made before it is answered, and if the
interrogatory is not withdrawn the objection
shall be noted thereon, and otherwise the objec-
tion shall not be considered.
Sec. 25. When the plaintiff in any suit shall
discontinued it, or become non-suited. and another
suit shall afterwards be commenced for the same |
cause between the same parties or their repre-
sentatives, all dispositions and testimony law
fully taken and filed in court in any preceding |
SUIT may be used in the succeeding suit, in like |
manner as if taken n the said suit.
Sec. 26 Any witness may be summoned and
compelled to give his depositions at any place
on the island on which he has his abode, in like
manner and under the same penalties as be may
be summoned aud compelled TO attend as wit
nesses in any court.
Part 2.-Of Perpetuating Testimony.
Sec. q. Whenever any person shall be de-
sirous of perpetuating the testimony of any wit
ness, he shall file a petition with the clerk of
any Court of Record setting forth his claims,
interest or title in or to the subject on which