AN ACT in regard to evidence and depositions in civil cases. [Approved March 29, 1872. In force July 1, 1872.

L. 1871-2, p. 405.]

1. WITNESSES-COMPETENCY AND CREDIBILITY OF.] § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That no person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof, as a party or otherwise, or by reason of his or her conviction of any crime; but such interest or conviction may be shown for the purpose of affecting the credibility of such witness; and the fact of such conviction may be proven like any fact not of record, either by the witness himself (who shall be compelled to testify thereto) or by any other witness cognizant of such conviction, as impeaching testimony, or by any other competent evidence. [L. 1867, p. 183, § 1.

2. WHEN NOT COMPETENT-EXCEPTIONS.] § 2. No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic or distracted person, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely:

First-In any such action, suit or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person, or after the ward, heir, legatee or devisee shall have attained his or her majority.

Second-When, in such action, suit or proceeding, any agent of any deceased person shall, in behalf of any person or persons suing or being sued, in either of the capacities above named, testify to any conversation or transaction between such agent and the opposite party or party in interest, such opposite party or party in interest may testify concerning the same conversation or transaction.

Third-Where, in any such action, suit or proceeding, any such party suing or defending, as aforesaid, or any person having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite party or party in interest shall also be permitted to testify as to the same conversation or transaction.

Fourth-Where, in any such action, suit or proceeding, any witness, not a party to the record, or not a party in interest, or not an agent of such deceased person, shall, in behalf of any party to such action, suit or proceeding, testify to any conversation or admission by any adverse party or party in interest, occurring before the death and in the absence of such deceased person, such adverse party or party in interest may also testify as to the same admission or conversation.

Fifth-When, in any such action, suit or proceeding, the deposition of such deceased person shall be read in evidence at the trial, any adverse party or party in interest may testify as to all matters and things testified to in such deposition by such deceased person, and not excluded for irrelevancy or incompetency. [L. 1867, p. 183, § 2.

3. BOOK ACCOUNT.] § 3. Where in any civil action, suit or proceeding, the claim or defense is founded on a book account, any party or interested person may testify to his account book, and the items therein contained; that the same is a book of original entries, and that the entries therein were made by himself, and are true and just; or that the same were made by a deceased person, or by a disinterested person, a non-resident of the state at the time of the trial, and were made by such deceased or non-resident person in the usual course of trade, and of his duty or employment to the party so testifying; and thereupon the said account book and entries shall be admitted as evidence in the cause. [L. 1867, p. 184, § 3.

4. PARTNERS AND JOINT CONTRACTORS.] § 4. In any action, suit or proceedings, by or against any surviving partner or partners, joint contractor or contrac tors, no adverse party, or person adversely interested in the event thereof, shall, by virtue of section 1 of this act, be rendered a competent witness to testify to auy admission or conversation by any deceased partner or joint contractor, unless some one or more of the surviving partners or joint contractors were also present at the time of such admission or conversation. [L. 1867, p. 184, § 4.

5. HUSBAND AND WIFE.] § 5. No husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage, or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or defendant, or where the cause of action grows out of a personal wrong or injury done by one to the other or grows out of the neglect of the husband to furnish the wife with a suitable support; and except in cases where the litigation shall be concerning the separate property of the wife, and suits for divorce; and except also in actions upon policies of insurance of property, so far as relates to the amount and value of the property alleged to be injured or destroyed, or in actions against carriers, so far as relates to the loss of property and the amount and value thereof, or in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband, in all of which cases the husband and wife may testify for or against each other, in the same manner as other parties may, under the provisions of this act: Provided, that nothing in this section contained shall be construed to authorize or permit any such husband or wife to testify to any admissions or conversations of the other, whether made by him to her or by her to him, or by either to third persons, except in suits or causes

between such husband and wife. [As amended by act approved January 21, 1874; in force July 1, 1874 L. 1867, p. 184, § 5.

6. ADVERSE PARTY COMPELLED TO TESTIFY.] § 6. Any party to any civil action, suit or proceeding, may compel any adverse party or person for whose benefit such action, suit or proceeding is brought, instituted, prosecuted or defended, to testify as a witness at the trial, or by deposition, taken as other depositions are by law required, in the same manner, and subject to the same rules, as other witnesses. [L. 1867, p. 185, § 6.

7. INCOMPETENCY NOT REMOVED BY RELEASE, ETC.] § 7. In any civil action, suit or proceeding, no person who would, if a party thereto, be incompetent to testify therein under the provisions of section 2 or section 3, shall become competent by reason of any assignment or release of his claim, made for the purpose of allowing such person to testify. [L. 1867, p. 185, § 7.

8. FURTHER EXCEPTIONS.] § 8. Nothing in this act contained shall in any manner affect the laws now existing relating to the settlement of the estates of deceased persons, infants, idiots, lunatics, distracted persons, or habitual drunkards having conservators, or to the acknowledgment or proof of deeds and other conveyances relating to real estate, in order to entitle the same to be recorded, or to the attestation of the execution of last wills and testaments, or of any other instrument required by law to be attested. [L. 1867, p. 185, § 8.

9. PRODUCTION OF BOOKS AND WRITINGS.] § 9. The several courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue.

10. PRINTED STATUTES.] § 10. The printed statute books of the United States, and of this state, and of the several states, of the territories and late territories of the United States, purporting to be printed under the authority of said United States, any state or territory, shall be evidence in all courts and places in this state, of the acts therein contained. [R. S. 1845, p. 232, § 1.

11. EXEMPLIFIED STATUTES.] § 11. An exemplification by the secretary of this state, of the laws of the other states and territories, which have been or shall hereafter be transmitted, by order of the executive or legislatures of such other states or territories, to the governor of this state, and by him deposited in the office of said secretary, shall be admissible as evidence in any court of this state. [R. S. 1845, p. 233, § 6.

12. REPORTS OF COURTS.] § 12. The books of reports of decisions of the supreme court, and other courts of the United States, of this state, and of the several states and the territories thereof, purporting to be published by authority, may be read as evidence of the decisions of such courts. [R. S. 1845, p. 232, § 1.

§ 13.

13. COURT RECORDS-HOW CERTIFIED.] The papers, entries and records of courts may be proved by a copy thereof certified under the hand of the clerk of the court having the custody thereof, and the seal of the court, or by the judge of the court if there be no clerk.

14. RECORDS, ETC., OF CITIES, ETC.-HOW CERTIFIED.] § 14. The papers, entries, records and ordinances, or parts thereof, of any city, village, town or county, may be proved by a copy thereof, certified under the hand of the clerk or the keeper thereof, and the corporate seal, if there be any; if not, under his hand and private seal. [See "Cities, etc.," ch. 24, § 65. R. S. 1845, p. 233, § 9. 15. RECORDS, ETC., OF PRIVATE CORPORATIONS-HOW CERTIFIED.] § 15. The papers, entries and records of any corporation or incorporated association may be proved by a copy thereof, certified under the hand of the secretary, clerk, cashier or other keeper of the same. If the corporation or incorporated association has a seal, the same shall be affixed to such certificate. [L. 1853, p. 184, § 1. 16. FORM OF CERTIFICATE.] § 16. The certificate of any such clerk of a court, city, village, town, county, or secretary, clerk, cashier, or other keeper of

any such papers, entries, records or ordinances, shall contain a statement that such person is the keeper of the same, and if there is no seal, shall so state. [R. S. 1845, p. 233, § 9; L. 1853, p. 184, § 1.

§ 17. The

17. RECORDS OF JUSTICES OF THE PEACE-HOW CERTIFIED.] proceedings and judgments before justices of the peace may be proved by a certified copy thereof, under the hand and private seal of the justice before whom such proceeding or judgment is had, or his successor, having the custody of the same. When such certified copy is to be used as evidence in any county other than that in which the justice so certifying resides, the certificate of the county clerk shall be annexed, certifying that the justice before whom the proceeding or judgment was had was, at the time such proceeding or judgment was had, a justice of the peace, duly commissioned, and if the certificate is by a successor, that he was such successor at the time of making such certificate. [R. S. 1845, p. 332, § 3.

18. SWORN COPIES.] § 18. Any such papers, entries, records and ordinances may be proved by copies examined and sworn to by credible witnesses.

19. PENALTY.] § 19. If any such officer, clerk, secretary, cashier, justice. of the peace, or other person authorized to certify copies of any papers, entries, records or ordinances, shall knowingly make a false certificate, he shall be punishable in the same manner as if he were guilty of perjury.

20. U. S. REGISTER OR RECEIVER, CERTIFICATE OF.] § 20. The official certificate of any register or receiver of any land office of the United States, to any fact or matter on record in his office, shall be received in evidence in any court in this state, and shall be competent to prove the fact so certified. The certifi-' cate of any such register, of the entry or purchase of any tract of land within his district, shall be deemed and taken to be evidence of title in the party who made such entry or purchase, or his heirs or assigns, and shall enable such party, his heirs or assigns, to recover or protect the possession of the land described in such certificate, in any action of ejectment or forcible entry and detainer, unless a better legal and paramount title be exhibited for the same. And the signature of such register or receiver may be proved by a certificate of the secretary of state, under his seal, that such signature is genuine. [R. S. 1845, p. 232, § 4.

21. PATENT, BEST EVIDENCE.] $21. A patent for land shall be deemed and considered a better legal and paramount title in the patentee, his heirs or assigns, than the official certificate of any register of a land office of the United States, of the entry or purchase of the same land. [R. S. 1845, p. 233, § 5.

22. STATE PATENTS-WHEN COPY OF RECORD EVIDENCE.] § 22. In all cases where any lands or lots have been or may be sold by this state, or any of the officers thereof, under the authority of any law of this state, whereof the patent shall be signed by the governor, under the seal of this state, and in case said patent has been or shall purport to be recorded in the recorder's office of the county where the lands or lots are situated, and said patent shall be lost, or out of the power of the party desiring to use the same to produce in evidence, a copy of the record of said patent, certified by the recorder of said county, may be read in evidence, in place of said original patent; which copy, certified as aforesaid, shall be prima facie evidence of the issuing of said patent, and of the contents thereof. The provisions of this section shall apply to deeds executed by the trustees of the Illinois and Michigan canal. [L. 1855, p. 33, § 1.

23. STATE LAND SALES-COPIES OF ENTRIES, ETC.] § 23. Copies of the books and entries of the sale of all lands or lots heretofore or that hereafter may be sold by this state, or any of the officers thereof, under any law of this state, certified to be true and correct copies of such books and entries, by the proper person or officer in whose custody said books and entries may properly be, shall be prima facie evidence of the facts stated in said books and entries. The cer tificate of such officer of the purchase of or issuing of a patent for any tract of land sold by this state, or any agent of the same, shall be deemed and taken as evidence of title in the party certified to have made such purchase or obtained

such patent, his heirs or assigns, unless a better and paramount title is exhibited for the same. The patent for land shall be deemed a better and paramount title in the patentee, his heirs and assigns, than such certificate. [L. 1855, p. 34, § 2. 24. DEPOSITIONS OF RESIDENT WITNESSES, IN CHANCERY.] § 24. When the testimony of any witness, residing or being within this state, shall be neces sary in any suit in chancery in this state, the party wishing to use the same may cause the deposition of such witness to be taken before any judge, justice of the peace, clerk of a court, master in chancery or notary public, without a commission or filing interrogations for such purpose, on giving to the adverse party or his attorney ten days' notice of the time and place of taking the same, and one day in addition thereto (Sundays inclusive) for every fifty miles travel from the place of holding the court to the place where such deposition is to be taken. If the party entitled to notice and his attorney resides in the county where the deposition is to be taken, five days' notice shall be sufficient. [R. S. 1845, p. 234, § 11.

25. DISPOSITION OF RESIDENT WITNESSES, IN LAW.] § 25. And it shall also be lawful, upon satisfactory affidavit being filed, to take the depositions of witnesses residing in this state, to be read in suits at law, in like manner and upon like notice as is above provided, in all cases where the witness resides in a different county from that in which the court is held, is about to depart from the state, is in custody on legal process, or is unable to attend such court on account of advanced age, sickness or other bodily infirmity. [R. S. 1845, p. 234, § 11.

26. DEPOSITION-WHEN WITNESS IS NON-RESIDENT, ETC.-NOTICE.] 26. When the testimony of any witness residing within this state more than one hundred miles from the place of holding the court, or not residing in this state, or who is engaged in the military or naval service of this state or of the United States, and is out of this state, shall be necessary in any civil cause pending in any court of law or equity in this state, it shall be lawful for the party wishing to use the same, on giving to the adverse party, or his attorney, ten days' previ ous notice, together with a copy of the interrogatories intended to be put to such witness, to sue out from the proper clerk's office a dedimus potestatem or commis sion, under the seal of the court, directed to any competent and disinterested per son, as commissioner, or to any judge, master in chancery, notary public or jus tice of the peace of the county or city in which such witness may reside, or in case it is to take the testimony of a person engaged in such military service, "to any commissioned officer in the military or naval service of this state or the United States," authorizing and requiring him to cause such witness to come before him, at such time and place as he may designate and appoint, and faithfully to take his deposition upon all such interrogatories as may be inclosed with or attached to said commission, both on the part of the plaintiff and defendant, and none others; and to certify the same, when thus taken, together with the said commission and interrogatories, into the court in which such cause shall be pending, with the least possible delay. [R. S. 1845, p. 233, § 10.

27. NOTICE TO NON-RESIDENT PARTY, ETC.] 27. When the deposition of any witness is desired to be taken under the provisions of this act, and the adverse party is not a resident of the county in which the suit is pending, or is in default, and no attorney has appeared for him in such cause, upon filing an affida vit of such fact and stating the place of residence of such adverse party, if known, or that upon diligent inquiry, his place of residence cannot be ascertained, the notice required by this act may be given by sending a copy thereof by mail, postage paid, addressed to such party at his place of residence, if known, or if not known, by posting a copy of such notice at the door of the court house where the suit is pending, or publishing the same in the nearest newspaper, and when interrogatories are required, filing a copy thereof with the clerk of the court ten days be fore the time of suing out such commission. [L. 1845, p. 580, § 1.