3 E. D. Smith, 276; Varona v. Socarras, 8 Abb. 302; Forward v. Harris, 30 Barb. 338; Boyd v. Colt, 20 How. 384; Armstrong v. Clark, 2 Code R. 143.

§ 839. Admission by member of corporation.—The admission of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation, unless it was made concerning and while engaged in a transaction, in which he was the authorized agent of the corporation.

2 R. S. 407, 80. East River B'k v. Hoyt, 41 Barb. 444.

§ 840. [Amended, 1877.] Seal, presumptive evidence of consideration.-A seal upon an executory instrument, hereafter executed, is only presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed.

Substitute for 2 R. S. 406, 377. Calkins v. Long, 22 Barb. 99; Wright v. Douglass, 10 id. 97; Wilson v. Bap. Ed. Society, id. 312; Averill v. Loucks, 6 1. 25; Tallmadge v. Wallis, 25 Wend. 113; Russell v. Rogers. 15 id. 353; Maun v. Eckford's Ex'rs, id. 519; Johnson v. Miln, 14 id. 499; McCurtie v. Stevens, 13 id. 529; Case v. Boughton, 11 id. 107; Conway v. Williams, 2 Hun, 642.

841. Amended, 1891.] Presumption of death in certain cases.- A person upon whose life an estate in real property depends, who remains without the United States, or absents himself in the state or elsewhere for seven years together, is presumed to be dead in an action or special proceeding concerning the property in which his death comes in question, unless it is affirmatively proved that he was alive within that time. And where in any action of partition in this state any portion of the proceeds of the sale of real property is or has been paid into court, or paid to the treasurer of any county for any unknown heirs, and has remained unclaimed for twenty-five years, after such payment by any person entitled thereto, the lapse of twenty-five years after such payment raises the presumption of the death of such unknown heirs at the time of the sale of such real property and before such payment, and after the lapse of twenty-five years after such payment it shall be presumed that there were no such unknown heirs living at the time of such sale or payment, and in any action or proceeding taken for the purpose of distributing and paying over such proceeds, all such unknown heirs are presumed and they shall be presumed to have been dead at the time of uch sale and before such payment into court, or to the treasurer of any county.

1 R. S. 749, 6, am'd. McCartee v. Camel, 1 Barb. Ch. 455; Gerry v. Post, 13 How. 120; Clarke v. Cummings, 5 Barb. 339; Clark v. Owens, 18 N. Y. 434.

ARTICLE SECOND.

ADMINISTRATION OF AN OATH OR AFFIRMATION.

SEC. 842. Before whom oaths and affidavits may be taken.

843. Id.; in special cases.

844. Id.; without the State.

845. General mode of swearing.

846. When kissing the gospels dispensed with.

847. When affirmation to be made.

848. Other modes of swearing.

849. Swearing persons not Christians.

850. Court may examine witness.

851. Swearing falsely in any form, perjury.

842. Before whom oaths and affidavits may be taken. An oath or affidavit, required or authorized by

1

law; except an oath to a juror or a witness upon a trial, an oath of office, and an oath required by law to be taken before a particular officer; may be taken before a judge, clerk, deputy-clerk, or special deputy-clerk, of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the district in which the officer is authorized to act; and, when certified by the officer, to have been taken before him, may be used in any court, or before any officer or other person.

2 B. 8. 284, 49, am'd. Stanton. Hilis, 16 Barb. 319; Florance v. But ler, 9 Abb. N. 8. 63; Craig. Briggs, 4 Paige, 548; Norton v. Colt, Wend. 250; Whitney v. Warner, 2 Cow. 499; People v. Brooks, 1 Denio, 457; Wood v. Williams, 1 N. Y. Leg. Obs. 154; Mosher v. Heydrick, 80 How. 161; 1 Abb. N. S. 258; Jackson v. Humphrey, 1 Johns. 496; People v. Tioga C. P., 7 Wend. 516; Parker v. Baker, 8 Paige, 428; Craft .Merrill, 14 N. Y. 456.

843. [Amended, 1877.] Id.; in special cases. Where an officer, person, board, or committee, has been heretofore, or is hereafter authorized by law, to take or hear testimony or to hear or receive an affidavit, or to take a deposition, in relation to a matter, concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee, may administer an oath, for that purpose. Where an officer, person, board, or committee, to whom or to which application is made to do an act in an official capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose.

t

Id. 552, 11. Berrien v. Westervelt, 12 Wend. 195.

§ 844.* Id.; without the State. - An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken, with out the State, except where it is otherwise specially prescribed by law, before an officer authorized by the laws of the State, to take and certify the acknowledg ment and proof of deeds, to be recorded in the State; and, when certified by him to have been taken before him, and accompanied with the like certificates, as to his official character and the genuineness of his signa. ture, as are required to entitle & deed acknowledged be fore him to be recorded within the State, may be used,

as if taken and certified in this State, by an officer authorized by law to take and certify the same.

New.

§845. General mode of swearing. The usual mode of administering an oath, now practiced, by the person who swears laying his hand upon and kissing the gos pels, must be observed, where an oath is administered, except as otherwise specially prescribed in this article. 7 R. 8. 407, 82. People v. Cook, 8 N. Y. 84; Pendegrast's case, 3 City H. Rec. 1.

$846. When kissing the gospels dispensed with.The oath must be administered in the following form, to a person who so desires, the laying of the hand upon and kissing the gospels being omitted: "You do swear, in the presence of the ever-living God". While so swearing, he may or may not hold up his hand, at his option.

Id., 83. People v. Cook, 8 N. Y. 67.

§ 847. When affirmation to be made. - A solemn de claration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form: "You do solemnly, sincerely, and truly, declare and affirm ".

Id., 84. Pendegrast's case, 3 City H. Rec. 11.

8848. [Amended, 1877.] Other modes of swearIng. If the court or officer, before which or whom a person is offered as a witness, is satisfied, that any peculiar mode of swearing, in lieu of, or in addition to laying the hand upon and kissing the gospels, is, in his opinion, more solemn and obligatory, the court or officer may, in its or his discretion, adopt that mode of swearIng the witness.

Id., 85.

$849.* Swearing persons not Christians.—A person believing in a religion, other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section 845 or section 846 of this act.

Id. 408, 86. People v. Jackson, 3 Park. Cr. 590; Fryatt v. Lindo, Edw. 239.

§ 850. Court may examine witness. The court or

officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a wit ness, to ascertain his capacity and the extent of his knowledge; and may inquire of a person, produced as a witness, what peculiar ceremonies in swearing he deems most obligatory.

2 R. 8. 408, 89, am'd. People v. McNair, 21 Wend. 608; Baxter e. McDonald, 5 Daly, 508.

$851. Swearing falsely in any form, perjury. -- A person swearing, affirming, or declaring, in any form, where an oath is authorized by law, is lawfully sworn, and is guilty of perjury, in a case where he would be guilty of the same crime, if he had sworn by laying his hand upon and kissing the gospels.

Id., part of 90, am'd.

TITLE II.

Compelling the attendance and testimony of a witness.

Bro. 852. Mode of serving subpoena issued out of a court.

853. Penalty for disobedience.

855. Subpoena to be issued by judge, etc.

855. Penalty for disobeying subpoena; warrant for witness.
856. When witness to be imprisoned.

857. Contents of warrant.

858. To whom directed; how executed.
859. Qualification of preceding sections.
860. Witness exempt from arrest.

861. When to be discharged from arrest.

862. By whom witness may be discharged.

863. Arrest, when void; penalty.

864. Sheriff not to be liable, unless affidavit is made.

866. Application of foregoing provisions to judgments.
566. Records not to be removed by virtue of subpoena.

857. Production, etc., of book of account.

868. Books, etc., of corporation, how produced.

59. When personal attendance not required by subpoena duces tecum.

§ 852. Mode of serving subpoena issued out of a court. -A subpoena, issued out of the court, to compel the attendance of a witness, and, where the subpoena so requires, to compel him to bring with him a book or paper, must be served as follows:

1. The original subpoena must be exhibited to the witness.

2. A copy of the subpoena, or a ticket containing its substance, must be delivered to him.(1)

3. The fees, allowed by law, for traveling to, and returning from, the place where he is required to attend, and for one day's attendance, must be paid or tendered to him. (2)

2 B. S. 400, 42, with amendments. Muscott v. Bunge, 27 How. 85. (1) People v. Van Wyck, 2 Cal. 333. (2) People v. Montgomery, 13 Abb. N. S. 207; Courtney v. Baker, 3 Denio, 27; Hurd v. Swan, 4 id. 75; Vence v. Spler, 18 How. 168. Subpoena duces tecum: De Barry v. Stanley, 48 How. 349; Holtz v. Schmidt, 34 N. Y. Supr. 28; Morgan v. Morgan, 16 Abb. N. 8. 291; Central Nat. B'k v. Arthur, 2 Sw. 194.

§ 853. Penalty for disobedience. A person so subpoenaed, who fails, without reasonable excuse, to obey the subpoena, or a person who fails, without reasona ble excuse,(1) to obey an order, duly served upon him, made by the court or a judge, in an action, before or after final judgment therein, requiring him to attend, and be examined, or so to attend, and bring with him a book or paper, is liable, in addition to punishment for contempt, for the damages sustained by the party ag grieved in consequence of the failure, and fifty dollars in addition thereto. Those sums may be recovered in one action, or in separate actions.(2) If he is a party to the action in which he was subpoenaed, the court may, as an additional punishment, strike out his pleading.(3)

Id., § 43, am'd. (1) Morgan v. Morgan, 16 Abb. N. S. 291; Heermans e. Williams, 11 Wend. 636; Hurd v. Swan, 4 Dento, 75. (2) Courtney .. Baker, 3 Den. 27; Andrews v. Andrews, 2 Johns. Cas. 109; People v. Vermilyea, 7 Cow. 108; Hurd v. Swan, 4 Den. 75; Heermans v. Williams, 11 Wend. 636; Wilkie v. Chadwick, 13 id. 49; Lane v. Cole, 12 Barb. 680; Smith . Merwin, 15 Wend. 184; Cogswell v. Meech, 12 id. 147; Gardiner . Peterson, 14 How. 513; Woods v. De Figantere, 16 Abb. 1; 1 Rob. 607; Morgan v. Morgan, 16 Abb. N. S. 291. (3) Bennett v. Hall, 10 N. Y. Leg. Obs. 191.

§ 854.* Subpoena to be issued by judge, etc.Where a judge, or an arbitrator, referee, or other person, or a board or committee, has been heretofore, or is hereafter expressly authorized by law, to hear, try, or determine a matter; or to do any other act in an official capacity, in relation to which proofs may be taken, or the attendance of a person as a witness may be re quired; or to require a person to attend, either before him or it, or before another judge, or officer, or a person designated in a commission issued by a court of another state or country, to give testimony or to have his depo sition taken, or to be examined; a subpoena may be