MICHAEL BALDWIN, Speaker of the house of representatives, DANIEL SYMMES, Speaker of the senate. February 2, 1805. CHAPTER XIV. An act, concerning testimony. depositions in cases de when wit nesses are moving or about re. otherwise disabled. Sec. 1. Be it enacted by the general assembly of Authorizing the state of Ohio, That when any civil cause shall to be taken be pending in any court or before any justice of pending the peace in this state, and the writ or original summons shall have been served on the defendant, or be pending before referees or arbitrators, and if either of the parties in the cause, shall think it necessary to have the testimony therein of any person resident within the county, who shall be about to go out of the state and not to return in time for the trial, or shall be so sick, infirm or aged as not to be able to travel and attend the trial, then the deposition of such person may be taken before any judge of the supreme court, president or associate judge of the court of common pleas, or justice of the peace in said county, not being of kindred within the third degree, or of counsel or attorney to either party, or interested in the event of the cause: Provided, That ten days previous notice, in writing, be given to the opposite party, or to his or her attorney, if to be found in the said county, stating the person's name whose deposition is to be taken, the time and place of taking the same, also the 14-Vol. 3 Ten days given the notice to be opposite party or attorney. Requisites as to the notice. Proviso. Courts authorized to grant com missions, etc., to foreign county, state or country. name of the judge or justice before whom to be made, and if the opposite party to such action or suit cannot be found in the said county, and he or she hath no agent or attorney therein, on whom to make service, then a copy of such notice shall be left, at least ten days before the day of taking such deposition, at the last and usual place of abode of such party. Provided always, That nothing in this section contained shall be so construed as to authorize the court, justice or referees, before whom such action or suit shall be pending, to admit such deposition, so taken as aforesaid, to be read in evidence on the trial of the said cause, unless it shall be made fully to appear to the said court, justice or referees, that the person making such deposition is, at the time of the trial, actually out of the county or unable to attend upon the trial from some one of the causes aforesaid, nor to prevent any and all legal exceptions being taken and made to the caption of such deposition, the want of notice or any other defect in law. Sec. 2. Be it further enacted, That it shall be lawful for all courts of record within this state, on motion of any plaintiff or defendant, to grant their commission to any justice of the peace of any other county, state or country, to take depositions, to be read in evidence on the trial of any suit or action depending before the said court, and the said court, granting such commission, shall, by Lay, by rule, rule of the said court, lay the parties under such restrictions, as to giving and accepting notice of taking such depositions, as the court shall deem proper and expedient, for the furtherance of justice, which said rules, so to be made, shall be binding upon the parties to such action or suit. the persons under certain restrictions. 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. ate judges empowered to take dep ositions, Sec. 4. Be it further enacted, That any two Two associ 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 said associate judge shall administer an oath and certify the caption, and the same deposition shall, notice. Depositions recorded evidence. taken, to be 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. common powered to certain con petition and Sec. 1. Be it enacted by the general assembly of Court of the state of Ohio, That if two or more persons, pleas emwho 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 proof. 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 |