Year: 1861

act, either party shall makeit appear to the sat
isfaction of the court, that the testimony of any
| person or persons isinaterlal to the issue, and
| that such party, after having used reasonable
| diligence has been unable to obtain such testi-
mony, the court shall refer it back to the person
appointed to take testimony as aforesaid, or to
| some other suitable person according to the pro
| visions of this act, and such person may proceed
| to take and report such testimony to the court
| as by this act provided.


| Sec. Is. II any testimony taken according to
the provisions OF this act. shat be struck out or
| suppressed by the court the expense of taking
at whose instance the same was taken, and such
expense shall be paid before further proceedings
shall be had OH said action, unless waived by tie
| opposite party.


Sec. Il. No action mentioned IN this act shall
| be tried until the testimony shall have been Ia
ken and reported to the court nor until all objec
tons to said testimony, and all motions to strike
out or surpress testimony shall have been finally
disposed Of on appeal, or the time for appealing
from the order striking out or surpresslng testl-
mony, or refusing to strike out or suppress The
same shall hive expired, without such appeal
having been taken, and all motions made in such
action shall be granted or denied, with such rea-
sonable costs as the court shall direct.
mony as provided in this act, shall have power,
and is hereby authorized, to take testimony any
where in this State, after giving notice as in this
act provided and such person shall be authorized
| to require the attendance or witnesses IN accor
dance with his subpoena, and to require the pro-
duction of records, book, papers and memoranda
| belonging to any railroad company or other cor
paration from any part of this State and any
witness who shall neglect or refuse to obey the
| subpoena of such person appointed to take teStI-
mony under the provisions OF this act, shall be
reported and dealt with as provided in section
seven of this act. The person so appointed to
take testimony shall be authorized aud empow-
cred to administer all necessary and proper oaths,
and any witness who, being duly sworn by such
person. shall Wilfully swear falsely to any mat
ter or thing material in the trial of said action,
shall be deemed guilty of perjury, and con-
viction thereof shall be punished as by law in such
cases provided. And such person appointed to
take testimony, shall have power to adjourn the
time and change the place Of taking said testi-
mony, from time to time, and from place to place,
as convenience may require, on giving to both
| parties reasonable notice thereof.


Sec, 16. On application to the person appoint
ed to take testimony, as in this act provided, by
either party, it shall be the duty of he person
so appointed to fix time and place for taking
such testimony and to give at least ten days no
tice thereof to the opposite party in the action
and in fixing the time when such testimony shall
be taken, he shall also allow at least one day for
every twenty miles between the residence of
either party and the place fixed for taking testi-
mOny, in addition to said ten days notice and in
computing the time above designated SUNDAYS
shall not be counted. The person appointed to





of this act, shall be appointed in all other cases
mentioned in this act which shall be pending in
the same circuit.


Sec. II. The person taking testimony in ae-
cordance with the provisions of this act shall be
entitled to demand and receive therefor ten cent,
per tolio OF one hundred words for all WRITING
necessarily done by him in connection with his
appoinement, and he shall also be allowed ten
cents for every mile necessarily Travelled by
him in going to the place fixed for taking sueh
rES oh
ton, shall all be payed before the testimony shall
be reported to the court. unless waived by the
person appointed to take testimony.


Sec. IS. In all actions mentioned in this act
the plaintiff shall take and produce ali the testi
mOny in his behalf, before any testimony shall
be required to be taken by the defendant, but af
ter the testimony shall have been taken by the
defendant, the plaintiff may give any further
testimony, tending to rebut the testimony taken
by the defendant on new matter bUt the rIain-
tilf shall net be allowed 70 present testimony
cumulative 10 that by him first given.


Sec l9. II in any case mentioned in this act
.he court shall strike out or suppress any mate
rial testimony on the ground Of iEtormality, If
regularity or in taking the same. said court
shall order the same to be Fetakcn and in con
formity with the quroments of t! is act.


Sec. 20. Either party to any action mentioned
in this act may appeal from the final Judgment
to the Supreme Court by filing and serving a
written notice of appeal within four years after
written notice of such judgment, which notice
of appeal shall specify whether the whole or
what part of such judgment is appealed from,
and such appeal shall stay all proceedings in i'd
action, except on said appeal until said appeal
shall be finally determined and certified back to
the court from whose judgment the appeal was
taken.


Sec. 81. If the party plaintiff shall recover
judgment in any action provided for in this act
and any land shall be sold for the purpose of OBJ,
tanning satisfaction of such judgment, in whole
or in part, no title shall be acquired, under or by
virtue OF such SALE so as to enJite the purchaser
or any one claiming through or under him to the
possession, or to the rents issues or profits of the
Land thus sold until the time for taking appeal
from final Judgmet as provided in this act shall
haveeXpired. And all pure hasers OF land sold
after hual Ju igment as aforesaid in any OF the
cases mentioned III this act, shall be subject to
the final decisions OF the case on appeal or on
writ Of error. and if any such case the judgment
Shall be reversed no rights OF title shall ever
crue or exist under or by virtue of any such sale
but all the rights Of such purchaser, or OF any
person claiming under bim, shall to all intents
and purposes cease aud determine from the time
of the reversal of such Judgment


Sec %. No judgment decree shall be rem
dered or execution issued, for any defce ncy
after the sale of the mortgaged premises upon
the foreclosure of any such mortgage as is de-
scri bed in this act.


SEC. %. Any defence that may be made to any
such mortgage, contract, or instrument in writ
ing as is mentioned in this act, by the maker of
any such mortgage, contract or instrument may
be made ny any and ali persons having any in
terest IN the lands, or part thereof, covered or
affected by any such mortgage, contract, or in
strument in writing.


See. "a. If the holder of any such moatgage
as Is referred to in this act shall advertise the
mortgage premises for sale, by virtue ofthe power
OF sale contained in such mortgage, or by vr tue
OF any law of this State authorizing the fore
closure of mortgages by advertisement, the
mortgagor, or any person interested in the mort
gage premises. or any part thereof, may tender
TO the nudge of the circuit county court of the
county IN which such premises situate, his
petition, verified by affidavit, stating that such
mortgage wss given for the purposes mentioned
IN section one o. this act, and that the same was
obtained by false or fraudulent representations, or
without valuable consideration, and such judge
shall Immediately issue an order enjoining such
sale; and in such order said judge shall direct an
Issue TO z be made by complaint and answer
between said parties, which shall be tried by the
circuit court OF the county in which the mortgag-
ed premises are situate unless the venue shall be
changed as provided in this act. From the
service of such order upon the party making such
sale, his agent or attorney, all further proceed
ings upon such sale shall be stayed until the final
determination of the issue so joined. Such issue
shall be tried. heard and determined in the man
ner prescribed in this act and the holder of such
mortgage shall be the plaintiff in the action.


Sec. 25. In all actions mentioned in this act,
the parties shall proceed in accordance with, and
be limited to the remedies and practice prescribed
by this act.


Sec. 26. No witness called in any action men
toned in this act, shall be excused from answer
ing any question material t. the issue, but his
testimony shall never be used against him, in
any criminal prosecution trial.


See %. This act shall be published imne-
diately after its passage, and shall take effect