A. D. 1912. able to leave son of age, tended by whenever it may be necessary to examine them by commis Persons ansion in causes depending either in this State or other States home, by rea- shall be attended by the Commissioners; and in case of &c. to be at their refusal to give evidence, or to answer to the interrogacommission-tories and cross-interrogatories under any such commission.. damages for shall be liable to the action of the party who may be injured ed for want by the want of their testimony, and shall make reparation i damages for such injury. ers liable for injury receiv of their testi mony. Civ. '02, § 2877. Such witnesses can be examined only by commission.-Owens v. Foreman Bail. Eq., 165. Clerks of Court may tions; rights tion; deposi tified. 2878. '02, § ARTICLE III. EXAMINATION OF WITNESSES BEFORE CLERK AND DEPOSI SEC. 3649. Clerks of Court may take de positions; application and 3650. Power of Clerk to compel at- 3651. Clerk's fees. 3652. Depositions de bene €88e, taken by; by whom; no- SEC. 3653. Testimony to be reduced writing and subscribed deponent. 3654. Duty of officer in respect the delivery or transmissi of deposition to Cour when it shall not be used Section 3649. The Clerks of the Courts of Common Pleas take deposi- in this State, in all civil causes or proceedings at issue i' of examina- the Courts of Common Pleas for their respective Countie tion to be cer- shall, upon the application of either party to such cause of Civ. 02. proceeding, after ten days' notice to the adverse party, tak in writing, the depositions of said party, or of any witres or witnesses in said cause or proceeding, whose examinatic: shall be required by the party making such application: upon taking which depositions, the several parties shall be entitled to the same rights of examination, cross-examination, and examination in reply, and the same exceptions to the admissibility of evidence, as are allowed by law upen examination before the Court. And the depositions so taken shall be certified by the Clerk before whom such examina tion was had, and may be read in evidence at the trial of he said cause or proceeding; subject, nevertheless, to the right of either party to require the personal attendance and viva voce examination of the witness or witnesses at the rial of said cause, or proceeding; the exercise of which ight, however, not to cause a continuance or delay in the rial of the said cause or proceeding. Testimony so taken before the action commenced is not admissible at trial, -Ivy v. Clawson, 14 S. C., 267. It may be required to be read at trial,' Ithough witness is present.-McLaurin v. Wilson, 16 S. C., 402. This Secion does not limit power of Circuit Judge to order reference to take testi aony. McSween v. McCown, 21 S. C., 371. Testimony taken de bene esse and used at first trial may be used by adverse arty at subsequent trial.-Providence Machine Co. v. Browning, 70 S. C., 48; 49 S. E., 325. A. D. 1912, tendance of witnesses; for. Sec. 3650. Every Clerk of the Court of Common Pleas Power to hall have power to compel the attendance before him of compel athe witness or witnesses to be examined, as aforesaid, upon lure to at he application of a party to any civil cause or proceeding tend; penalty it issue in the said Court; for which purpose he may issue Civ. '02, S subpoena to any such witness, which shall be served per- 2879. onally; and if any witness, upon whom such subpoena has een duly served, shall fail to attend conformably thereto, he Clerk by whom the same was issued shall have power o issue a rule, requiring such witness to show cause why le should not be attached for contempt; and, upon the ailure or neglect of such witness to show cause, the said Clerk shall have power to issue an attachment against such vitness for contempt, which attachment shall not be dissolved, except by the order of a Judge, or of the said Clerk. tion of wit Sec. 3651. Every Clerk of the Court of Common Pleas, Fees of Clerk For taking the depositions hereinbefore mentioned, shall be for examinantitled to demand and receive the sum of one dollar for nesses. ach witness examined, to be paid by the party against '02, hom judgment shall be rendered in said cause or proceed ng. Sec. 3652. In addition to the methods for taking testimony now provided by law the testimony of any may be taken in any civil action depending in the Civ. $ When testi witness mony may be Court sition de bene taken by depo esse and by .2881. f Common Pleas for any County within this State by depo- whom. ion de bene esse, where the witness lives without the County, Civ. '02, which such cause is to be tried, or at a greater distance rom the place of trial than one hundred miles, or is bound A. D. 1912. taken. on a voyage to sea, or is about to go out of this State or out of the County in which the cause is to be tried, or to a greater distance than one hundred miles from the place of trial before the time of trial, or when he is aged or infirm. How may be The deposition may be taken before any Circuit Judge of this State, or the Clerk of any of the Circuit Courts of this State, or any Magistrate or Notary Public of this State, or any Chancellor, Justice or Judge of a Supreme or Superior Court, Mayor or Chief Magistrate of a city, Magistrate, Judge of a County Court or Court of Common Pleas, or any of the United States or the Dominion of Canada or Kingdom of Great Britain, or any Notary Public not being of counsel or attorney to either of the parties interested in the event of the cause. Reasonable notice, not less than ten days, must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest which notice shall state the name of the witness and the time and place of the taking of his deposition; and whenever. by reason of absence from the State and want of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for tak ing, upon such notice as any of the Circuit Judges of this State shall think reasonable and direct. Any person may be compelled to appear and depose as provided by this Section in the same manner as witnesses may be compelled to appear and testify in Court. Requirements as to contents of notice.-Wallingford v. W. U. Tel. Co., § S. C., 201; 38 S. E., 446; Henderson v. Williams, 57 S. C., 1; 35 S. E., 261. Appearance waives defect in notice.-Sloan v. Hunter, 56 S. C., 385; 34 8. E 658. Permanent residents of another State can be so examined.-Moore 1. Willard, 30 S. C., 615; 9 S. E., 273. Such depositions may be taken without Interrogatories.-Ib. Party has right at any stage of the case to call for such testimony of witness on behalf of other party.-Petrie v. R. R., 27 S. C. 64; 2 S. E., 837. A witness being shown to be a non-resident when deposition was taken, is presumed to be such at time of trial in absence of testimony to the contrary.-Kaughman v. Caughman, 49 S. C., 159; 27 S. E., 16. Declarstions against interest in testimony taken under this Section.-McGahan V. Crawford, 47 S. C., 566; 25 S. E., 123. Where notice was given on the 13th and testimony taken on the 23rd, it was insufficient.-Williams v. Halford, 64 S. C., 396; 42 S. E., 187. See Ib., 67 s. C., 306. Certificate of notary sufficient identification of witness— Sonneborn & Co. v. Ry., 65 S. C., 502; 44 S. E., 77. Certificate need not state it was written by witness or read over to him.-Edgefield Mfg. Co. Casualty Co., 78 S. C., 73; 58 S. E., 965. May be typewritten.-Stoddard v. Hill, 38 S. C., 385; 17 S. E., 138; Edgeeld Mfg. Co. v. Casualty Co., 78 S. C., 73; 58 S. E., 965. Presumption is hat officer typewrote the testimony himself; only required to read it over to itness when first taken down by stenographer and transcribed.-John laughter Co. v. King Lumber Co., 79 S. C., 338; 60 S. E., 705. Certificate, here taken by stenographer.-79 S. C., 338. Notice not giving name of otary sufficient.-Battle v. Cape Fear Lumber Company, 80 S. C., 273; 61 E., 441. A. D. 1912, be reduced to writing. 2882. 1902, Sec. 3653. Every person deposing as provided in the Testimony to receding Sections shall be cautioned and sworn to testify he whole truth and carefully examined. His testimony Clv. '02, § hall be reduced to writing by the officer taking the deposi- XXIII, 1072. ion, or by himself in the officer's presence, and by no other erson, and shall, after it has been reduced to writing, be ubscribed by the deponent: Provided, That this shall not e construed to prevent the use of stenographers for the urpose of taking such testimony, but the testimony so aken by such stenographers shall be reduced to writing or ypewritten and read over to such witnesses. John Slaughter Co. v. King Lumber Co., 79 S. C., 338; 60 S. E., 705. be retained by until delivered 2883. Sec. 3654. Every deposition taken under the provisions Deposition to f the two preceding Sections shall be retained by the the Magistrate fficer taking it until he delivers it with his own hand into to the Court. he Court for which it is taken, or it shall, together with a Civ. '02, S ertificate of the reasons as aforesaid of taking it and of he notice, if any, given to the adverse party, be by such fficer sealed up and directed to such Court, and forwarded o such Court either by mail or express, and remain under is seal until opened in Court. But unless it appears to the atisfaction of the Court that the witness is then dead or When such one out of the County or State, or to a greater distance deposition man one hundred miles from the place where the Court is used. tting, or that, by reason of age, sickness, bodily infirmity imprisonment, he is unable to travel and appear at Court, ach deposition shall not be used in the cause. Such testimony is not admissible, unless officer taking it certify the reasons r doing so.-Featherstone v. Dagnell, 29 S. C., 45; 6 S. E., 897. Nor unless e stated reasons of inability of witness to attend Court appear to the Court trial.-Ib. Where depositions in due form are signed with the name and le of the officer, and sealed, and are received by the Clerk of the Court, in aled package, by mail, there is substantial compliance with the requirements this and preceding one.-Bulwinkle v. Cramer, 30 S. C., 153; 8 S. E., 689. rtificate and seal of the Notary sufficient evidence that he was a Notary d that the witness was sworn.-Moore v. Willard, 30 S. C., 615; 10 S. E., D. The Statute does not require the certificate to be under the seal of the shall not be A. D. 1912. officer taking it; nor to state where the examination took place.-Wallingfort v. W. U. Tel. Co., 60 S. C., 201; 38 S. E., 446. Sufficiency of certificateHenderson v. Williams, 57 S. C., 1; 35 S. E., 261. Exhibits introduced need not accompany deposition.-Stoddard v. Hill, 38 S. C., 385; 17 S. E., 13 Pachage containing testimony; how to be transmitted and certified.-Traven v. Jennings, 39 S. C., 410; 17 S. E., 849. Requisites of certificate.-Riser v. Ry., 67 S. C., 419; 46 S. E., 47. Method of reading, certifying and forwarding.-Hagins v. Ins. Co., 72 S. C., 216; 51 S. E., 683. Certificate not insufficient.-Crosby v. S. A. L., 81 S. C., 24. S. E., 1064. In absence of witnesses to bond or note, be proved by mony, unless SEC. ARTICLE IV. GENERAL PROVISIONS RESPECTING EVIDENCE. 3655. When signature of witness to 3656. Same, where defendant is ex- 3657. When protest of Notary suf- 3659. Attested copies of Acts, re- 3662. Transcript from minute books 3663. Copies of certain instruments 3665. Certified copies of entries in 3666. Copies of grants and plats 3667. Certified copies of deeds of land; notice. SEC. 3668. Certified copies of instr ments other than wills. 3669. Not applicable when frud is alleged. 3670. Foreign instruments. 3671. Restriction upon use of les of foreign instruments 3672. Farmers' and planters' books receivable in evidenc when. 3673. Books not admissible to prose &c. 3677. Order as to at Chambers. Section 3655. The absence of a witness to any bond or signature may note shall not be deemed a good cause, by any Court of jus other test tice, for postponing a trial respecting the same; but the defendant signature to such bond or note may be proved by other tessignature 1stimony; unless the defendant, in his answer, shall swear, or affirm, according to the form of his religious profession. swears that not his. Civ. '02, |