CHAPTER XXV.

EVIDENCE.

Sec. 1056. OATH.-All evidence shall be given under oath according to the forms of the common law, except that where a witness has conscientious scruples against taking an oath, he may, in lieu thereof, solemnly, sincerely, and truly declare and affirm; and wherever herein any application, statement, or declaration is required to be supported or verified by an oath it is to be understood that such affirmation is the equivalent of an oath.

Sec. 1057. PERJURY.-A person swearing, affirming, or declaring, or giving testimony in any form where an oath is authorized by law, is lawfully sworn, and will be guilty of perjury in a case where he would be guilty of said crime if sworn according to the forms of the common law.

Sec. 1058. TESTIMONY DE BENE ESSE.-The testimony of any witness may be taken in any civil cause depending in any court of the District of Columbia, whether the cause be at issue or not, by deposition de bene esse, under any of the following conditions:

First. Where the witness lives beyond the District of Columbia. Second. Where the witness is likely to go out of the United States or beyond the District and not return in time for the trial.

Third. Where the witness is infirm or aged, or for any other reason the party desiring his testimony fear he may not be able to secure the same at the time of trial, whether said witness resides within the District or not.

Fourth. If during the trial any witness is unable, by reason of sickness or other cause, to attend the trial, the deposition of such witness may, in the discretion of the court, be taken and read at the trial.

Any such deposition may be taken before any judge of any court of the United States; before any commissioner or clerk of any court of the United States, or any examiner in chancery of any court of the United States; before any chancellor, justice, or judge or clerk of any court of any State or Territory or other place under the sovereignty of the United States, or any notary public or justice of the peace within any place under the sovereignty of the United States: Provided, That no such person shall be eligible to take such deposition who is counsel or attorney for any party to the cause or who is in any wise interested in the event of the cause.

Before proceeding to take the deposition reasonable written notice of the time, place, names, and addresses of the witnesses shall be given by the party or his attorney proposing to take the deposition to the attorney of record, if there be one, of the adverse party, and if not, to the party himself, which notice shall specify the name or names of the witnesses, the time and place of taking the same, and the name and official character of the person before whom the same is to be

taken; but it shall not be lawful to require the adverse party to attend the taking of a deposition at more than one place on the same day.

In all cases in rem the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party until a claim shall have been put in, when the claimant and the person having the agency or possession as aforesaid shall both be entitled to the notice.

Summons to any witness to appear and testify shall be issued by the person or officer before whom the deposition is to be taken, and served by the marshal of the United States or his deputy within the place where the witness resides; and the witness may be compelled to appear and testify by the officer before whom the deposition is to be taken in the same manner as witnesses may be compelled to appear and testify in court; and for the purpose of executing the provisions of this section any of the persons authorized to take such depositions are hereby vested with all the power and authority for compelling the attendance of the witness and the giving of his testimony which by law or usage are vested in any of the judges of the courts of the United States, and shall be entitled, upon summary application, to the aid of the courts of the United States to compel such attendance and giving of testimony.

Every person deposing as herein provided shall first swear or solemnly and truly affirm to tell the truth, the whole truth, and nothing but the truth in answer to such questions as are propounded to him by the parties or their counsel; and the adverse party or his counsel shall have the right to cross-examine such witness.

The questions propounded to the witness and the answers of the witness thereto shall be taken down in writing; and the same may be taken down stenographically by the officer taking the deposition or a competent and disinterested stenographer engaged by him, and afterwards transcribed into writing or typewriting, and, in the presence of the officer taking the deposition, read over to the witness, and signed by him. If the witness be unable to write or refuse to sign the deposition, the officer taking the same shall certify the fact and the reason, if any, assigned by the witness.

The deposition of the witness or witnesses, together with the certificate of the officer taking the same, shall be by said officer sealed up and indorsed with the title of the cause in which the deposition is taken, and the cost of taking the same and by whom paid, and by him transmitted to the court in the District of Columbia in which the cause is pending, and by him deposited, postage prepaid, in the United States mail.

If, at the time of trial, the witness can be produced to testify in open court the deposition shall not be read in evidence; but if the attendance of the witness can not be produced then the said deposition shall be admissible in evidence, subject to such objections to the questions and answers as were noted at the time of taking the deposition, or within ten days after the return thereof, and would be valid were the witness personally present in court.

In any case where the interests of justice may require the supreme court of the District of Columbia may grant a dedimus potestatem to take depositions according to common usage, and may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam if they relate to any matters that might be cognizable in any court of the United States."

When the testimony of any witness residing in any place not within the sovereignty of the United States is desired in any cause pending in any court of the District of Columbia, the same may be taken upon interrogatories and cross-interrogatories filed in said court, and transmitted by said court under letters rogatory, addressed to some court of record in the foreign State in which said witness is then to be found.-Act of June 30, 1902.

[Sec. 1058. TESTIMONY DE BENE ESSE.-The testimony of any witness may be taken in any civil cause depending in any court of the District of Columbia, whether the cause be at issue or not, by deposition de bene esse, under any of the following conditions:

First. Where the witness lives at a greater distance than one hundred miles from the place of trial.

Second. Where the witness is likely to go out of the United States or out of the District to a place more than one hundred miles from the place of trial and not return in time for the trial.

Third. Where the witness is infirm or aged, or for any other reason the party desiring his testimony fears he may not be able to secure the same at the time of trial, whether said witness resides within the District or not.

Fourth. If during the trial any witness is unable, by reason of sickness or other cause, to attend the trial, the deposition of such witness may, in the discretion of the court, be taken and read at the trial.

The deposition may be taken before any judge of any court of the United States; before any commissioner or clerk of any court of the United States, or any examiner in chancery of any court of the United States; before any chancellor, justice, or judge or clerk of any court of any State or Territory or other place under the sovereignty of the United States, or any notary public or justice of the peace within any place under the sovereignty of the United States: Provided, That no such person shall be eligible to take such deposition who is counsel or attorney for any party to the cause or who is in any wise interested in the event of the cause.

Before proceeding to take the deposition reasonable written notice of the time, place, names, and addresses of the witnesses shall be given by the party or his attorney proposing to take the deposition to the attorney of record, if there be one, of the adverse party, and if not, to the party himself, which notice shall be at least twenty days more than the time necessary to reach the place of taking such deposition, and shall specify the name or names of the witnesses, the time and place of taking the same, and the name and official character of the person before whom the same is to be taken; but it shall not be lawful to require the adverse party to attend the taking of a deposition at more than one place on the same day.

In all cases in rem the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party until a claim shall have been put in, when the claimant and the person having the agency or possession as aforesaid shall both be entitled to the notice.

When by reason of absence of the party or his attorney of record, or other cause, the giving of the notice herein required shall be impossible or impracticable, and there shall be urgent necessity for taking such deposition, the notice shall be given in such manner as a justice of the supreme court of the District of Columbia shall direct.

Summons to any witness to appear and testify shall be issued by the person or officer before whom the deposition is to be taken, and served by the marshal of the United States or his deputy within the place where the witness resides; and the witness may be compelled to appear and testify by the officer before whom the deposition is to be taken in the same manner as witnesses may be compelled to appear and testify in court; and for the purpose of executing the provisions of this section any of the persons authorized to take such depositions are hereby vested with all the power and authority for compelling the attendance of the witness and the giving of his testimony which by law or usage are vested in any of the judges of the courts of the United States, and shall be entitled, upon summary application, to the aid of the courts of the United States to compel such attendance and giving of testimony.

Every person deposing as herein provided shall first swear or solemnly and truly affirm to tell the truth, the whole truth, and nothing but the truth in answer to such questions as are propounded to him by the parties or their counsel; and the adverse party or his counsel shall have the right to cross-examine such witness.

The questions propounded to the witness and the answers of the witness thereto shall be taken down in writing and the same may be taken down stenographically

by the officer taking the deposition or a competent and disinterested stenographer engaged by him, and afterwards transcribed into writing or typewriting, and, in the presence of the officer taking the deposition, read over to the witness, and signed by him. If the witness be unable to write or refuse to sign the deposition the officer taking the same shall certify the fact and the reason, if any, assigned by the witness. The deposition of the witness or witnesses, together with the certificate of the officer taking the same, shall be by said officer sealed up and indorsed with the title of the cause in which the deposition is taken, and the cost of taking the same and by whom paid, and by him transmitted to the court in the District of Columbia in which the cause is pending, and by him deposited, postage prepaid, in the United States mail.

If, at the time of trial, the witness can be produced to testify in open court the deposition shall not be read in evidence; but if the attendance of the witness can not be produced then the said deposition shall be admissible in evidence, subject to such objections to the questions and answers as were noted at the time of taking the deposition, or within ten days after the return thereof, and would be valid were the witness personally present in court.

In any case where the interests of justice may require the supreme court of the District of Columbia may grant a dedimus potestatem to take depositions according to common usage, and may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam if they relate to any matters that might be cognizable in any court of the United States.

When the testimony of any witness residing in any place not within the sovereignty of the United States is desired in any cause pending in any court of the District of Columbia, the same may be taken upon interrogatories and cross-interrogatories filed in the said court, and transmitted by said court under letters rogatory, addressed to some court of record in the foreign State in which said witness is then to be found.]

Sec. 1059. No witness shall be required, under the provisions of the preceding section, to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his deposition; nor shall any witness be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of the said section, unless his fee for going to, returning from, and one day's attendance at the place of examination are paid or tendered to him at the time of the service of the subpoena.

Sec. 1060. COMMISSION TO TAKE DEPOSITIONS.- -On motion made in any common law action in the District, by a party thereto, the court may order a commission to issue to such person or persons as the court may name to take the deposition of any witness residing or being out of the District orally or on interrogatories and cross-interrogatories, to be filed and accompany such commission, as may be provided by the rules of the court, and said commission shall be executed, returned, and published according to the practice in courts of equity: Provided, That such depositions shall not be admitted at the trial of the action if, at the time, the witness be present in the District and his attendance can be obtained by the process of the court.

Sec. 1061. TESTIMONY IN EQUITY CAUSES.-In equity causes in the District the testimony of the witnesses may be taken in the manner provided by the rules of the Supreme Court of the United States for practice in equity, and of the supreme court of the District of Columbia not inconsistent therewith: Provided, The court may, in its discretion, for proper cause shown, order the testimony to be taken orally in its presence or under a commission, according to the usages of chancery, or before examiners, upon any reasonable notice as directed in the preceding section, as the court may order and direct; and according to the same usages the court may, upon application by any party interested, direct depositions to be taken in perpetuam rei memoriam, in relation to matters that may be cognizable in the court.

Sec. 1062. COMMISSIONS FROM COURTS OUT OF THE DISTRICT.-When a commission is issued by any court of the United States or of any State or Territory or of any place under the jurisdiction of the United States, for taking the testimony of witnesses within the District of Columbia, the same proceedings shall be had in relation thereto as are directed by sections eight hundred and sixty-eight and eight hundred and sixty-nine of the Revised Statutes of the United States.-Act of June 30, 1902.

[Sec. 1062. COMMISSIONS FROM COURTS OUT OF THE DISTRICT.—When a commission is issued by any court of the United States or of any State for taking the testimony of a witness named therein within the District of Columbia, the same proceedings shall be had in relation thereto as are directed by sections eight hundred and sixty-eight and eight hundred and sixty-nine of the Revised Statutes of the United States.]

Sec. 1063. COMPETENCY OF WITNESSES. Except as herein elsewhere provided, no person shall be incompetent to testify in any civil action or proceeding by reason of his being a party thereto or interested in the result thereof; but, if otherwise competent to testify, he shall be competent to give evidence on his own behalf and competent and compellable to give evidence on behalf of any other party to such action or proceeding.

Sec. 1064. TESTIMONY OF SURVIVING PARTY.-If one of the original parties to a transaction or contract has, since the date thereof, died or become insane or otherwise incapable of testifying in relation thereto, the other party thereto shall not be allowed to testify as to any transaction with or declaration or admission of the said deceased or otherwise incapable party in any action between said other party or any person claiming under him and the executors, administrators, trustees, heirs, devisees, assignees, committee, or other person legally representing the deceased or otherwise incapable party, unless he be first called upon to testify in relation to said transaction or declaration or admission by the other party, or the opposite party first testify in relation to the same, or unless the transaction or contract was made or had with an agent of the said deceased or otherwise incapable party, and said agent testifies in relation thereto, or unless called to testify thereto by the court.

Sec. 1065. TESTIMONY OF DECEASED OR INSANE PARTY.-If a party, after having testified at a time when he was competent to do so, shall die or become insane or otherwise incapable of testifying, his testimony may be given in evidence in any trial or hearing in relation to the same subject-matter between the same parties or their legal representatives, as the case may be; and in such case the opposite party may testify in opposition thereto.-Act of June 30, 1902.

[Sec. 1065. TESTIMONY OF DECEASED OR INSANE PARTY.-If a party, after having testified at a time when he was competent to do so, shall die or become insane or otherwise incapable of testifying, his testimony may be given in evidence in a subsequent trial in relation to the same subject-matter between the same parties, or their legal representatives, as the case may be; and in such case the opposite party may testify in opposition thereto.]

Sec. 1066. PARTNERS.-Where any of the original parties to a contract or transaction which is the subject of investigation are partners or other joint contractors, or jointly entitled or liable, and some of them have died or otherwise become incapable of testifying, any others with whom the contract or transaction was personally made or had, or in whose presence or with whose privity it was made or had, or admis