before the county commissioners, one dollar for each day's attendance, and six cents for each mile's travel going out and returning home; and before a justice of the peace and of the quorum, a trial justice, a judge of a municipal or police court, referees, auditors, or commissioners specially appointed to take testimony, fifty cents a day for attendance, and for travel the same as at the courts aforesaid.27a

IN CRIMINAL CASES.

18. In all criminal trials, the accused shall, at his own request, but not otherwise, be a competent witness. The husband or wife of the accused shall be a competent wit

19. The records and proceedings of any court of the United States or of any State, authenticated by the attestation of the clerk or officer having charge thereof, and by the seal of such court, shall be admitted in evidence.28

(n) The presumption is that the records of inferior courts are regularly made up, and though such records, or duly authenticated copies thereof, are deemed evidence of the highest character, and cannot be explained or contradicted by parol testimony or extraneous documents, that fact does not exclude the original papers on which such records are founded. Either are competent evidence, 28a

20. Printed copies, purporting to be published under the authority of government, of statutes, acts, and resolves of the United States, or of this, or any other State or territory of the United States, may be admitted as evidence; those of this State as sufficient, those of other States as prima facie.?

21. Foreign laws may be proved by parol evidence, but when such laws appear to be existing in a written statute or code, it may be rejected, unless accompanied by a copy thereof. The unwritten law of any other State or territory of the United States may be proved by parol evidence, and by books of reports of cases adjudged in their courts.30

27a R. S. c. 116, § 13.-276 R. S. c. 134, § 19, as amended by c. 137, Public Laws of 1873.- State v. Bartlett, 55 Me. 200.-28 R. S. c. 82, § 96.-284 State v. Bartlett, 47 Me. 402.-29 R. S. c. 82, § 97.-80 R.. S. c. 82, § 98.

22. In all actions touching the realty, or in which the title to real estate is material to the issue, and where original deeds would be admissible, attested copies of such deeds from the registry may be used in evidence, without proof of their execution, when the party offering such copy is not a grantee in the deed, nor claims as heir, nor justifies as servant of the grantee or his heirs.31

23. Copies of all papers and documents belonging to or filed, or remaining in the office of any consul, viceconsul, or commercial agent of the United States, and of all official entries in the books or records of any such office, when certified under the hand and official seal of the proper consul, vice-consul, or commercial agent, are admissible as evidence. Copies of registers or enrolment of vessels, or of any other custom-house records or documents deposited in the office of the collector of customs, attested by him or his deputy under seal of office, may be used in evidence, and have the same effect as the production of records in court, verified by the recording officer in person.32

24. The certificate of the adjutant-general relating to the enlistment of any person in the United States' service, from this State, and of all facts pertaining to the situation of such person, to the time of and including his discharge, as found upon the records of his office, shall be prima facie evidence of the facts so certified, in any suit or proceeding in any of the courts and tribunals of this State.33

25. When the testimony of a subscribing witness to any deed, or of the magistrate who took the acknowledgment thereof, has been taken in the trial of any civil cause, in relation to the execution, delivery, or registry of such deed, and such witness has since died, proof of such former testimony shall be admissible in the trial of any other civil cause involving the same question, if the parties are the same, or where one of the parties is the same, and the adverse party acted as agent or attorney for the adverse party in the former suit, but such testimony shall be liable to impeachment, like the testimony of a living witness.34

31 R. S. c. 82, § 99.-32 R. S. c. 82, § 100.—33 R. S. c. 82, § 101.—34 R. S. c. 82, § 102.

26. No deed, contract, receipt, or other instrument in writing shall be held void by reason of being dated on the Lord's day, without other proof than the date of its being made and delivered on that day.35

CHAPTER XIV.

DEPOSITIONS IN GENERAL.

1. Depositions taken for the causes, and in the manner hereinafter mentioned, may be used in all civil suits or causes, petitions for partition of land, libels for divorce, prosecutions for the maintenance of bastard children, petitions for review, and in trials before arbitrators, referees, and county commissioners; and in cases of contested senatorial or representative election. Depositions or affidavits may also be taken in application for pensions, bounties, or arrears of pay, under any law of the United States.1

2. A justice of the peace or notary public may take depositions to be used in a pending cause, in which he is not interested, nor then nor previously counsel.2

3. No suit, petition, libel, or prosecution, for the purposes of this chapter, shall be considered pending, till the process therein has been duly served on the respondent, or such notice as is required by law, or ordered by the court, has been duly given; and no such deposition shall be used in the trial of any cause except by consent of parties, unless the notice hereinafter mentioned is duly given to the adverse party.3

(a) It is only when a civil suit is pending, that depositions not in perpetuam are authorized to be taken; and if the opposing party appear before the magistrate without objecting before him to the taking, and put interrogatories to the witness, this does not preclude him from making the objection at the time of trial.1 And where a nonsuit was ordered, but to be taken off if the

35 R. S. c. 82, § 103.

R. S. c. 107, §1.-2 R, S. c. 107, § 2.—3 R. S. c. 107, § 3.- Howard v. Folger, 15 Me. 447.

defendant should come in on the first day of the succeeding term and be ready for trial, and where it was eventually taken off and the action tried, the action was deemed pending, after the nonsuit was thus ordered and before it was taken off

4. Depositions may be taken for any of the following

causes.

6

First. When the deponent is so aged, infirm, or sick, as not to be able to attend at the place of trial.

Second. When the deponent resides out of, or is absent from, the State.

Third. When the deponent, before the session of the court where the deposition is to be used, is bound to sea on a voyage, is about to go out of the State, or more than sixty miles from the place of trial, and not expected to return in season to attend it.

(b) This clause does not authorize the taking of a deposition in term-time for the reason that the deponent is "about to go out of the State."7

Fourth. When the deponent is judge of the supreme judicial court, or court of probate, and is prevented by his official duty from attending the trial.

Fifth. When the deponent resides in a town other than that in which the trial is to be had; and also when he resides in the same town; but, in the latter case, the deposition shall not be used, unless, at the trial, the party offering it shows the deponent's death or permanent removal from that town.

Sixth. When the deponent is confined in prison, and such imprisonment is continued until after the trial.

5. On application of either party to a justice of the peace or notary public, he may issue a summons to the deponent to appear at a designated time and place, to give his deposition, and a notice to the adverse party to be then and there present; and the deposition may then and there be taken by him or any other justice or notary.

8

(c) A justice of the peace who is attorney in a case may issue notice to the adverse party, returnable before another magistrate.9

6. The notice to the adverse party shall be served on

5 Brown v. Foss, 16 Me. 257.-6 R. S. c. 107, § 4.-7 Stinson v. Walker, 21 Me. 211.8 R. S. c. 107, § 5.-9 Cutler v. Maker, 41 Me. 594.

him or his attorney by reading it in his presence and hearing, or by giving to him, or leaving at his place of last and usual abode, an attested copy thereof; and the service may be made by a sworn officer, or by any other person, and proved by his affidavit.1o

(d) Depositions taken without notice being given to the adverse party, as required by law, cannot be used in the trial of an action, except by consent of the parties; 11 and the fact that the "adverse party" was present is not evidence that he had the notice required, or that he waived it.11

(e) In a notice for the taking of a deposition, if there be a defect as to the place of the taking, it is waived by the attendance of the party notified.11a

(f) A deposition, taken on notice to the adverse party's attorney of record, will not be rendered inadmissible by proof that the party taking the deposition had been informed, prior to such notice, that the attorney had retired from the action.116

7. No person, for the purposes of this chapter, shall be considered such attorney, unless his name is indorsed upon the writ, or the summons left with the defendant, or he has appeared for his principal in the cause, or given notice in writing that he is attorney of such adverse party.1

12

(g) This section is peremptory as to who may be considered attorney, and proof of the attorneyship must appear by one of the four modes specified. 13

(h) The name of an attorney is indorsed on the writ when placed there by him, although over his name the words "from the office of" were previously printed by the clerk; and the surname alone thus written is sufficient. 15 These cases probably overrule the early case 16 declaring the contrary doctrine.

8. Where there are several plaintiffs or defendants, the notice shall be sufficient if given by the justice or notary to one or more of them; the adverse party shall be allowed not less than at the rate of one day, Sundays excepted, for every twenty miles' travel from his usual place of abode to the place of caption, between the service of notice and time appointed for taking the deposition. Verbal notice to the adverse party by a justice or notary shall be sufficient; and when a deposition is taken out of the State,

10 R. S. c. 107, § 6.-11 Hall v. Houghton, 37 Me. 411.-11a George v. Nichols, 32 Me. 179.11 Herrin v. Libby, 35 Me. 350.-12 R. S. c. 107, §7.-13 Allen v. Doyle, 33 Me. 420.-14 Stone v. McLanathan, 33 Me. 131; Richards v. McKenney, 43 Me. 177-15 Sawtelle v. Wardwell, 56 Me. 146.-16 Pierce v. Pierce, 29 Me. 69.