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name of the whole, except the person or persons against whom it shall be commenced ; and if any of the persons named as plaintiffs shall neglect to appear to prosecute such action, being duly notified thereof, those who do
appear shall have a right to prosecute the same in their own names, and to their own use, to final judgment and exe
cution. Writs of
Sec. 3. And be it further enacted, That the supreme estrepe- judicial court in any county, and each of the justices when is
thereof in vacation, on the application of the plaintiff or plaintiffs in an action of ejectment, partition or waste, be
and they are hereby empowered, in their discretion reTo whom spectively, to issue a writ of estrepement, directed to the
sheriff or his deputy of the county in which the estate in question may be, requiring them to stay all waste on the estate, that shall be described in such writ of estrepement; and the sheriff or his deputy who shall be charged with the service of such writ, shall have power to stay all waste, as shall be directed in such writ, and to take such aid as shall be necessary for that purpose.
Sec. 4. And be it further enacted, That if such writ of estrepement shall be issued by the court, it shall be returnable at such time as the court shall direct; and if such writ shall be issued by a justice of said court, it shall be returnable to the next term of such court, and the court may thereupon issue a new writ or not, at their discretion.
1745, '98, 1802, '22.
An act authorizing and regulating the taking of De ons.
Section 1. Be it enacted by the General Assembly, and by the take depo- authority thereof it is enacted, “That it shall and may be law
ful for any judge of the supreme judicial court, judge of the court of common pleas, justice of the peace, warden or public notary within this State, to take the deposition of any witness, to be used in the trial of any civil action commenced or pending in any of the courts of this State: Provided always, That it shall not be lawful for any judge, justice, warden or notary, being of counsel or attorney to either of the parties, or interested in the event of the cause, to take any deposition in any suit in which he shall be so concerned or interested.
Sec. 2. And be it further enacted, That it shall be the duty of the judge, justice, warden or notary, previous to
the taking of any deposition as aforesaid, to cause the Adverse adverse party, if residing in this State, or within twenty
party to be
notified. miles of the place of caption, or in case of his absence, his attorney, to be notified of the time and place appointed for taking the same, and that he may attend and put interrogatories to the deponent, if he thinks fit; and the By whortes notification shall be issued by the judge, justice, warden or notary, who shall take such deposition, and directed to any proper officer, or any impartial and disinterested person, and shall be served a reasonable time, not less than twenty-four hours before the time of taking such deposition; and the officer or other person charged as afore- How servsaid with such notification, shall serve the same by read. ed. ing it to the party to be cited, if to be found, and if not to be found, by leaving a copy thereof at his usual place of abode; and shall in his return state the hour of the day when the service was made; and when such service shall be made by any person other than a sworn officer, he shall verify the same under oath or affirmation, before some judge, justice, warden or notary.
Sec. 3. And be it further enacted, That every person be. Deposifore deposing as aforesaid, shall be carefully examined, tione, how cautioned and sworn, or affirmed, to testify the truth, the whole truth, and nothing but the truth ; and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the judge, justice, warden or notary taking the deposition, or by the deponent in his presence; and the deposition so taken shall be retained by such judge, justice, And rowarden or notary, until he deliver the same with his own turned. hand to the court for which it is taken, or shall, together with a certificate of its having been duly taken, be by said judge, justice, warden or notary, sealed up and directed to such court, and remain so sealed until opened in court; and any person may be compelled to appear Witnesse and depose as aforesaid in the same manner as to appear compelled and testify in court.
to depose. Sec. 4. And be it further enacted, That the deposition Deposiof any person taken pursuant to this act, shall be used as benea as evidence, in the trial of any cause in which it shall have evidence. been taken to be used.
Sec. 5. And be it further enacted, That if any witness shall Unless be induced to go out of this State, in order that his depo- undue sition may be taken without the adverse party's hav- means. ing due notice, the deposition of such witness taken by
to be taken.
Taken out of the State.
commissions to take.
such undue means, shall not be used or admitted as evidence in any court in this State.
Sec. 6. And be it further enacted, That depositions taken without this State, to be used in the trial of any cause pending in any court in this State, shall be received as evidence, unless such depositions are taken in the manner in the preceding section mentioned; and provided such depositions shall be taken agreeably to the laws of the state or country in which the same shall have been taken, or before some judge, chancellor, or other civil magistrate of such state or country, in conformity to the provisions of this act.
Sec. 7. And be it further enacted, That the supreme jumay mirant dicial court of this State, or either of the courts of com
mon pleas, on the motion of either party in any civil suit pending therein, shall be authorized to grant a dedimus potestatem to take depositions according to common usage, when it may be necessary to prevent a failure or de
lay of justice. Deposi
Sec. 8. And be it further enacted, That any judge of the sutions in
preme judicial court or courts of common pleas, as well before as after the commencement of any action, on application, shall be authorized to take depositions in perpetuam rei memoriam; which depositions in case of the death of the deponent, his becoming non compos mentis, his absence from this State, or inability to attend, may be used as evidence in any court in this State, against any party who shall have had due notice of the taking of such depositions, his heirs, executors, administrators or assigns.
Sec. 9. And be it further enacted, That no deposition during
shall be used in the trial of any cause in any court in this to be used. State, which shall have been taken during the sitting of
the court before which said action may be pending, unless the same shall have been taken by order of court.
An act regulating Conveyances of Real Estate. For the prevention of clandestine and fraudulent sales of houses and lands, and to the intent that it may be the better known what right, title or interest, persons have in or to such estates as they offer for sale:
Section 1. Be it enacted by the General Assembly, and by the authority thereof it is enacted, That no estate of inheritance or freehold, or for a term exceeding one year, in
lands or tenements, shall be conveyed from one to anoth- Real eser by deed, unless the same be in writing, signed, sealed to the hom. and delivered, by the party making the same, and ac- yeyed by knowledged before a senator, judge, justice or town-clerk, by the party or parties who shall have sealed and delivered it, and recorded, or lodged to be recorded, in the town-clerk's office where the said estates do lie.
Sec. 2. And be it further enacted, That all bargains, sales, Deed to be and other conveyances whatsoever, of any lands, tene-void unments or hereditaments, whether they be made for passing any estate of freehold or inheritance, or for term of years exceeding the term of one year, and all deeds of trust, and mortgages whatsoever, which shall hereafter be made and executed, shall be void, unless they shall be acknowledged and recorded as abovesaid : Provided always, Proviso: That the same between the parties and their heirs shall nevertheless be valid and binding.
Sec. 3. And be it further enacted, That whenever any deed, lease, covenant, bond of defeazance or other instrument note whatever, touching the transfer or conveyance of any real when estate, shall be presented to any town-clerk for record, it lodged. shall be the duty of such town-clerk, immediately thereupon, to cause to be entered in writing on such deed, or other instrument, the day, and as near
as may be the hour and minute, when the same was
presented for record. Sec. 4. And be it further enacted, That if any grantor of any lands, tenements or hereditaments, shall refuse to acknow- acknowl.
refusing to ledge his deed or conveyance by him signed, sealed and edge. delivered, being thereunto required by the grantee, his heirs or assigns, it shall be lawful for any judge, justice or warden, within the town where such grantor dwells, on complaint made by the grantee, his heirs or assigns, and supported by the oath of the complainant, to issue a warrant against the party refusing, and to examine him touching such refusal; and if he shall persist in such refusal, to com- May he mit him to prison without bail, until he shall acknowledge ted, unless the same, unless he shall appeal to the next court of gen- he appeals eral sessions of the peace, to be holden for the county in which such examination shall be had ; and in case of such Terms of
appeal. appeal, the appellant shall give bond with surety for his appearance there, and prosecuting his appeal with effect: and the grantee may file a copy of his deed in the town- Grantee clerk's office, pending such appeal, and the same being copy ose so filed, shall be equally available to the party, during the deed in pendency of such appeal, as though the said deed was ac
clerk's of fice.
of the State.
knowledged and recorded as above directed; and the same shall be accounted sufficient caution to all persons against purchasing the estate in such deed mentioned to
be conveyed: Provided nevertheless, That when any grandying, how tor after the execution of the deed shall die, or remove out be proved. of the State, before the same shall be acknowledged, the
said deed may be proved by the oaths of one or more of the witnesses to such deed, if any there be; but if there be no witnesses to such deed, then the hand-writing of the grantor may be proved by other sufficient evidence, before the supreme judicial court, or any court of common
pleas within this State ; and such proof shall be equivalent How to be to the party's acknowledgment: Provided also, That if the
party who shall execute any deed for conveying any lands, edged when ex. tenements or hereditaments within this State, doth not reecuted out side therein, that then it shall and may be lawful for any
judge, justice, mayor or notary public, in the state or country where such party shall reside, to take the acknowledgment of said party to such deed, and to certify the same under his hand and seal and the same shall be equivalent to an acknowledgment, as prescribed in the first section of this act.
Sec. 5. And be it further enacted, That whenever any defeazance bond of defeazance or other instrument shall be execucorded in ted, which shall cause any deed or other conveyance of five days. lands, tenements or hereditaments, to operate as a mort
gage, or to pass an estate redeemable, such bond or other instrument shall be recorded in the town-clerk's office in the town where such lands, tenements and heredita
ments shall be, or be there lodged to be recorded, withOtherwise in five days after the execution thereof; and if the perthe deed son entitled to such bond or other instrument of defeanot to operate as a zance, shall neglect to cause the same to be lodged or mortgage. recorded, within five days as aforesaid, the same shall not
cause the deed to which it relates to operate as a mortgage, against any person who shall bona fide, and without notice of said incumbrance, purchase the real estate conveyed in such deed, of the person to whom the same was made; and the person entitled to the same as aforesaid, shall be debarred of all right of redemption against such
second purchaser, his heirs or assigns. Right of
Sec. 6. And be it further enacted, That nothing in this dower sav- act shall be construed, deemed or extended, to bar any
widow of any grantor of any lands, tenements or other real estate, of her dower therein, who did not legally join