books and other writings Production of trial of causes cognizable before them respectively, if it shall be satisfactorily proved that ten days' notice was previously given to the opposite party, or to his, her or their attorney, to require the party notified as aforesaid to produce books and other writings in his, her or their possession, power or custody, which shall contain evidence pertinent to the issue; and if either party shall fail to comply with such order, or to satisfy the court why the same is not complied with, it shall be lawful for the court, if the party so refusing be plaintiff, to give judgment for the defendant, as in case of non-suit; and if defendant, to give judgment against him or her by default: Provided, That the party requiring the production of the books or papers as aforesaid shall, in all cases, satisfy the court of their materiality in the causes therein depending. (j) 9 Fla., 71. 11 Fla., 234. Original books of accounts evidence. SEC. 15. In all suits or actions at law or in equity in this State, the shop book and books of accounts of either party, in which the charges and entries shall have been originally made, shall be admissible in evidence in favor of such party: Provided, however, That the credibility of such evidence shall be 6 Fla., 688-746. judged of by the jury in case of a trial at law, and by the court in case of a hearing in equity. (k) 1 Fla., 301. 4 Fla., 382. 6 Fla., 730. 5 Fla., 478. 5 Fla., 409. Comparison of writings permitted. 2 Fla., 49. Motions on affidavit. Judge may order documents to be SEC. 16. Comparison of a disputed writing with any writing proved to the satisfaction of the Judge to be genuine, shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute. (7) SEC. 17. Upon motions founded upon affidavits, it shall be lawful for either party to make affidavits in answer to the affidavits of the opposite party, upon any new matter arising out of such affidavits. Upon the hearing of any motion or summons, it shall be lawful for the court or Judge, at their or his discretion, and upon such terms as they or he shall think reaproduced and sonable, from time to time to order such documents as they or he may think fit to be produced, and such witnesses as they or he may think necessary to appear and be examined viva voce, either before such court or Judge or before the clerk, and upon hearing such evidence, or reading the report of such clerk, to make such rule or order as may be just. (1) witnesses to be examined. Interrogatories. SEC. 18. In all causes in any of the courts of this State the plaintiff may, with the declaration, and the defendant may, with the plea, or either of them may, at any other time, deliver to the opposite party or his attorney interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in case of a body corporate any of the officers of such body corporate, within ten days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without (j) Sec. 5, Act of Nov. 12, 1828. (7) Secs. 55, 56 and 57, Chap. 1096, Act of Feb. 8, 1861. just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the court or a Judge may allow, shall be deemed to have committed a contempt of court, and shall be liable to be proceeded against accordingly. (1) order oral ex party. SEC. 19. In case of omission, without just cause, to answer Court may sufficiently such written interrogatories, it shall be lawful for amination of the court or Judge, at their or his discretion, to direct an oral interrogated examination of the interrogated party, as to such points as they or he may direct, either before the court or Judge or clerk, and the court or Judge may, by such rule or order, or any subsequent rule or order, command the attendance of such party or parties before the person appointed to take such examination for the purpose of being orally examined as aforesaid, or the production of any writings or other documents to be mentioned in such rule or order, and may impose therein such terms as to such examination, and the costs of the application, and of the proceedings thereon and otherwise, as to such court or Judge shall seem just. (1) be returned to SEC. 20. Whenever, by virtue of this act, an examination Depositions to of any witness or witnesses has been taken before a Judge or Clerk's office. clerk, or other person appointed to take such examination, the depositions taken down by such examiner shall be returned to and kept in the clerk's office of the court in which the proceedings are pending; and office copies of such depositions may be given out to the opposite party or his attorney applying for the same. (m) SEC. 21. It shall be the duty of the clerk or person named in Clerk, if rethe order for taking examinations under this act, if required, special report quired, to make to make a special report to the court in which such proceedings to court, &c. are pending touching such examination, and the conduct or absence of any witness or other person thereon or relating thereto; and the court is authorized to institute such proceedings and make such order and orders upon such report as justice may require and as may be instituted and made in any case of contempt of the court. The costs of every application for a rule or order to take the examination of witnesses, and the costs of proceedings thereon, shall be in the discretion of the court. (m) Who to pay costs. SEC. 22. Either party shall be at liberty to apply to the court order for or a Judge for a rule or order for the inspection by the jury, property by inspection of or by himself, or by his witnesses, of any real or personal prop-jury. erty, the inspection of which may be material to the proper determination of the question in dispute; and the costs of the said rule or order, and the proceedings therein, shall be in the discretion of the court. (m) SEC. 23. In the trial of civil actions in this State, married (7) Secs. 58 and 59, Chap. 1096. Act of Feb. 8, 1861. (m) Secs. 60, 61, 62 and 63, Chap. 1096, Act of Feb. 8, 1881. Wives may testify. Persons not excluded by reason of interest. Proviso as to insane persons, executors, administrators, &c. 16 Fla., 738. 6 Fla., 52. Evidence neces sary to establish records when lost, mislaid or destroyed. Parties pro ducing witness may not impeach his character, but may contradict him by other evidence. Former state ment of witness. women shall not be excluded as witnesses in cases wherein their husbands are parties and allowed to testify. (n) (1) SEC. 24. No person offered as a witness in any court or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceeding, or because he is a party thereto : Provided, however, That no party to such action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any transaction or communication between such witness and the person at the time of such examination deceased, insane, or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or the assignee or committee of such insane person or lunatic; but this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor, or committeeman shall be examined on his own behalf, or as to which the testimony of such deceased person or lunatic shall be given in evidence. (0) SEC. 25. And that when a record is lost, mislaid, or destroyed its existence and contents may be proved like any other document by any secondary evidence, when the case does not from its nature disclose the existence of other and better evidence. (0) SEC. 26. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness prove adverse, contradict him by other evidence, or prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he made such statement. (p) SEC. 27. If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. (p) SEC. 28. A witness in any cause may be questioned as to (n) Chap. 3124, Act of March 7, 1879. (p) Secs. 52 and 53, Chap, 1096, Act of Feb. 8, 1861. (1) For rules of evidence generally, see 6 Fla., 482; 9 Fla., 490; 2 Fla., 660; 4 Fla.. 402, 284; 6 Fla., 570; 6 Fla., 81; 11 Fla., 266, 234; 16 Fla., 69, 416, 368. For evidence as to domicil, see 7 Fla., 81. What evidence may be admitted within discretion of court, see 5 Fla., 199, 457, 478; 8 Fla., 370, 450; 3 Fla., 27; 4 Fla., 102. or misde whether he has been convicted of any felony or misdemeanor, Witness conand, upon being so questioned, if he either denies the fact or victed of felony refuses to answer, it shall be lawful for the opposite party to meanor. prove such conviction; and a certificate containing the sub-, stance and effect only of the indictment and conviction of such offence, signed by the clerk of the court where the offender was convicted, shall, upon proof of the identity of the person, be sufficient evidence of such conviction, without proof of the signature or official character of the person appearing to have signed the same. (p) 16 Fla.. 835-554. under oath. SEC. 29. In all criminal prosecutions, the party accused shall statement have the right of making a statement to the jury, under oath, of the matter of his or her defence. (q) (1) convict of SEC. 30. No person shall be convicted of treason but by the Evidence nectestimony of two lawful witnesses to the same overt act of essary to treason whereof he stands indicted, unless he confesses the treason. same in open court. (r) SEC. 31. In prosecutions for forging or counterfeiting notes Testimony or bills of the banks mentioned in Section 9, Chapter 60, of necessary in prosecutions this Digest, or for uttering, publishing or tendering in pay- for forgery or ment as true, any forged or counterfeit bank bills or notes, or counterfeiting. for being possessed thereof with intent to utter and pass the same as true, the testimony of the president and cashier of such banks may be dispensed with, if their place of residence is out of this State or more than forty miles from the place of trial; and the testimony of any person acquainted with the signature of such president or cashier, or who has knowledge of the difference in the appearance of the true and counterfeit bills or notes of such banks, may be admitted to prove that such bills or notes are counterfeit. (8) Treasurer certain cases. SEC. 32. In prosecutions for forging or counterfeiting any certificate of note, certificate, bill of credit or other security, issued on behalf Secretary or of the United States, or on behalf of any State or Territory, or evidence in for uttering, publishing, or tendering in payment as true, any such forged or counterfeit note, certificate, bill of credit or security, or for being possessed thereof with intent to utter and pass the same as true, the certificate under oath of the Secretary of the Treasury of the United States, or of the Secretary and Treasurer of any State or Territory, on whose behalf such note, certificate, bill of credit, or security purports to have been issued, shall be admitted as evidence for the purpose of proving the same to be forged or counterfeit. (s) SEC. 33. If in any proceedings in a court of justice, in which Books and perjury is reasonably presumed, as is mentioned in Section 11, papers constituting evidence Chapter 85, of this Digest, any papers, books, or documents of perjury. have been produced which are deemed necessary to be used on (p) Sec. 54, Chap. 1096, Act of Feb. 8, 1861. (g) Sec. 1, Chap. 1816, Act of June 1, 1870. (r) Sec. 4, Sub-Chap. 2, Chap. 1637, Act of Aug. 6, 1868. (8) Secs. 10 and 11, Sub-Chap. 5, Chap. 1637, Act of Aug. 6, 1868. (1) 13 Fla., 675; 15 Fla., 577; 5 Fla., 285; 5 Fla., 528, 560; 13 Fla., 636. Search warrant papers. a prosecution for such perjury, the court may, by order, detain the same from the person producing them, so long as may be necessary for their use in such prosecution. (t) SEC. 34. Any Justice of the Peace may issue a warrant for for books and the purpose of searching for any obscene books, pamphlets, ballads, printed papers, or other things mentioned in Section 11, Chapter 59, of this Digest, and all such things found by an officer in executing a search warrant, or produced or brought into court, shall be safely kept, so long as is necessary for the purpose of being used as evidence in any case, and so soon as may be afterwards, shall be destroyed by order of the court before whom the case is brought. (u) Truth may be given in evidence in libel. SEC. 35. In all criminal prosecutions and civil actions for libel the truth may be given in evidence to the jury, and if it shall appear that the matter charged as libelous is true, and was published for good motives, the party shall be acquitted. (v) CHAPTER 102. EXECUTIONS. 1. Capias ad satisfaciendum, when to issue. 2. Executions against corporation, how may be issued. 3. When and how Clerks of Circuit Courts to issue fieri facias; to whom directed; what date executions shall bear. 4. When writs of fieri facias made returnable; when officer to make returns of his doings. 5. Execution must be issued within three years after rendition of judgment; entitled to renew the same from time to time for twenty years. 6. What property subject to execution. 7. Property levied on, how released. 8. Interest of mortgagor; right of redemption and equity of redemption liable to levy and sale. (1) Sec. 6. Sub-Chap. 6, Chap. 1637, Act of Aug. 6, 1868. (v) Sec. 9, Declaration of 9. Mortgagors may be compelled to state amount due and owing upon mortgages. 10. Purchasers of property sold under mortgage required to give bond; conditions and qualifications of said bond. 11. All sales under execution must be advertised for thirty days. 12. Sale must be in county town; proviso as to merchandise. 13. What are legal sale days. 14. Sheriff to make deed to property sold under execution; overplus to be paid to defendant. 15. Penalty if Sheriff fails to pay over moneys collected. 16. Manner of proceeding when execution is against principal and securities. 17. Moneys collected to be paid to attorney of record; receipt of such attorney shall be a release to (u) Sec. 16, Sub-Chap. 8, Chap, 1637, Act of Aug 6, 1868. Rights, Const. of 1888. |