which a party was, in this state, allowed to make use of his own books as evidence. It is no longer necessary, as he is now admitted to testify. Conklin vs. Stamler, 2 Hilt., 422; 17 How., 399; 8 Abb., 395. See, however, Tomlinson vs. Borst, 30 Barb., 42; also Hauptman vs. Catlin, 1 E. D. Smith, 729.

On giving his evidence, a party cannot be impeached otherwise than as an ordinary witness. Varona vs. Sacarras, 8 Abb., 302. Nor can his general moral character be attacked for the purpose of impeaching his books, if he introduce them. Tomlinson vs. Borst, supra. But if effectually contradicted, he should not be credited. Boyd vs. Colt, 20 How., 384.

From 1857 to 1859, notice was necessary to be given in all cases by the party tendering his evidence. As to its necessity, see Warden vs. Buell, 18 How., 256. It was required to be full and specific; as clear in that respect as a bill of particulars; and a mere general reference to the facts put in issue was held insufficient. Pattison vs. Johnson, 15 How., 289. Signature by the party or his attorney was essential to its validity. Demelt vs. Leonard, 19 How., 182. And the full period of service was also a prerequisite. Such period, however, had reference to the time of actual examination, and not that of the commencement of the trial. Bissell vs. Hamlin, 3 Bosw., 383.

But no notice or specification of points was necessary on the examination of the adverse party in rebuttal. He was generally examinable. Burling vs. Ogden, 14 How., 75; 6 Duer, 681. See, as to the power of recalling such parties to give testimony in rebuttal, Rushmore vs. Hall, 12 Abb., 420.

A non-resident party could not, it was held, be examined on his own behalf, by commission issued on his own motion, under the section as it stood before the amendment of 1859. He could not adopt this course unless forced to do so by the service of notice on the part of his adversary. Fairbanks vs. Tregent, 17 How., 258; 8 Abb., 66; reversing same case, 16 How., 187; 7 Abb., 21. See also Hull vs. Wheeler, 7 Abb., 411. The contrary conclusion was, however, come to in another district, in Bigelow vs. Mallory, 17 How., 427. See also, Burling vs. Ogden, 14 How., 75; 6 Duer, 681; Shufelt vs. Power, 10 How., 286. The amendment of 1859 was held to have removed the difficulty in Block vs. Haas, 8 Abb., 335.

During the above epoch, and until the amendment of 1860, which expressly provides upon the subject, the section was held not to be applicable to evidence in a Surrogate's Court. Ferry vs. Dayton, 31 Barb., 519; Wilcox vs. Smith, 26 Barb., 316; Talbot vs. Talbot, 23 N. Y., 17; or to summary proceedings, Marseilles vs. Bulger, 19 How, 34.

§ 208. Present Rules of Evidence-Including General Con

siderations.

The amendment of 1860 has swept away most of the distinctions above insisted on. A party is now clearly examinable as a witness on any purpose, in any manner, and at any stage of the cause, without any necessity of notice whatsoever.

his own behalf, for

The only remnant of the former restriction is this:

He cannot, nor can his assignor be examined against representatives of, or parties deriving title under a deceased person, in respect to any transaction or conversation had personally between the deceased person and the witness.

It is obvious that the objection on this ground does not lie to the admissibility of the witness or to his evidence generally, but only to such portions of it, if any, as may fall within the restriction. Pro tanto, his examination, if attempted, may, probably, be held to be void, the prohibition being absolute. On other points it will stand.

And the examination of the adverse party, on his own behalf, will now remove the restriction altogether, as regards such conversation or transaction.

Under the clause, as it stood from 1860 to 1862, when the term "representatives" was employed, instead of the present detailed enumeration of classes, comprised within the scope of the section, that term was held to be strictly confined to parties standing in the position of executors or administrators, and not to extend to an heir, a guardian in socage, a dowress, or the like. McCray vs. McCray, 12 Abb., 1. And also, that it was confined to representatives within this state. An executor under a will proved in another, was held not to be within the scope of the section. Buckingham vs. Andrews, 34 Barb., 434 ;

12 Abb., 322.

From 1860 to 1862 a second restriction was specified, viz., that neither husband nor wife should be required to disclose any communication made by one to the other.

That rule, whilst existent, was permissive rather than imperative. It is clear that, if the objection were taken, the witness could not be required to depose further on points embraced within it, and that to proceed with that branch of the examination would be error; but whether, in the absence of objection, the evidence would not stand, seems to have been questionable.

There seems little doubt but that the intention of the legislature, in passing that branch section as it stood, was to do away with the former restrictions, rendering the evidence of husband and wife inadmissible,

either for or against each other, and to enable their testimony to be taken in all such cases. See Barton vs. Gledhill, 12 Abb., 246.

It was equally clear that, whenever husband and wife were parties to the record, their testimony (with the exception above noticed) was admissible on behalf of any party.

What may be the effect of expunging the above restriction on the question of the admissibility of their testimony, in a general point of view, remains to be settled. There are, as yet, no reported decisions upon the subject, since the passage of the amendments in question.

Prior to the amendment of 1860, the above question was much discussed; and here, again, it may be more convenient to classify the decisions according to the three epochs above laid down.

During the first epoch it was abundantly settled that the forner rules remained unchanged, and that, in ordinary cases, such testimony was wholly inadmissible in suits where husband and wife were parties, or where either was sought to be examined for or against the other. See Pillow vs. Bushnell, 5 Barb., 156; 4 How., 9; 2 C. R., 19; Erwin vs. Smaller, 2 Sandf., 340; Hasbrouck vs. Vandervoort, 4 Sandf., 596; 9 L. O., 249; 1 C. R. (N. S.), 81; affirmed, 5 Seld., 153; Arborgast vs. Arborgast, 8 How., 297; Main vs. Stephens, 4 E. D. Smith, 86; Draper vs. Henningsen, 1 Bosw., 611. And the same rule prevailed where marriage had been prima facie established, but was denied by the parties themselves. Scherpf vs. Szadeczky, 4 E. D. Smith, 110; 1 Abb., 366. Similar rules prevailed in criminal cases. The People vs. Carpenter, 9 Barb., 580. See also, as to the admissions of the wife, in an action against the husband, Logue vs. Link, 4 E. D. Smith, 63. Or her declaration in favor of a third party, Armstrong vs. McDonald, 10 Barb., 300. See, however, as to a question of agency on the part of the wife, McLean vs. Jagger, 13 How., 494.

But this rule was held not to extend to a question affecting the wife's separate estate, where her assignee had been substituted as plaintiff with the husband's assent. Hastings vs. McKinley, 1 E. D. Smith, 273; affirmed by Court of Appeals, Seld. Notes, 7th of October, 1853, p. 19. So also, in a suit relating to such estate, where the husband had been joined, but was not a necessary party. Willis vs. Underhill, 6 How., 396.

the case of the husband Farley vs. Flanagan, Smith, 525; Hanford

The above disqualifications did not extend to or wife of an assignor who retained no interest. 1 E. D. Smith, 313; Prince vs. Down, 2 E. D. vs. Higgins, 1 Bosw., 441. See also McGinn vs. Worden, 3 E. D. Smith, 355.

Procceding to the second epoch, the courts in several instances continued to uphold the principle of the general exclusion of the testimony

of husband and wife, for or against each other, on the authority of the previous decisions above cited, it being laid down that, although the amendment of the section was sufficient by its terms to render the evidence admissible, still it did not affect the broad ground of public policy on which it had hitherto been excluded. Macondray vs. Wardle, 26 Barb., 612; 7 Abb., 3; Smith vs. Smith, 15 How., 165. See also collaterally, Sweet vs. Sweet, 15 How., 169. See likewise, as to the general rule that a witness, originally incompetent to testify, cannot become so merely by being made a party to the record, Symonds vs. Peck, 10 How., 395. See, however, Marsh vs. Potter; Shoemaker vs. McKee, and People vs. Chamberlain, below cited.

The same principle, however, that, where the suit related exclusively to the wife's separate estate, and the husband was merely joined for the sake of conformity, his evidence was admissible, continued to be maintained. Draper vs. Henningsen, 16 How., 281. So, likewise, where the wife was a merely formal party in respect of an inchoate right of dower. Babbott vs. Thomas, 31 Barb., 277.

In Marsh vs. Potter, 30 Barb., 506, the subject is fully discussed, the cases minutely examined, and Macondray vs. Wardle, and Smith vs. Smith, above cited, dissented from, and it is laid down that, by the amendnent of 1857, husband and wife were rendered competent witnesses for or against each other, in all cases where they are parties to the record; out that, in actions between either of them and a third person, one is not a competent witness either for or against the other. Likewise, that the former law with respect to confidential communications between them is unchanged. The same rule as to admissibility is also maintained, and Sweet vs. Sweet included in the dissent, in Shoemaker vs. McKee, 19 How., 86.

The doctrine held in Marsh ys. Potter is approved, and the principle that, in a suit between themselves, the testimony of husband and wife is generally admissible, save only as to matters on which such testimony was prohibited for reasons of public policy, such as proof of the fact of non-intercourse, may be considered as settled by Chamberlain vs. The People, 23 N. Y., 85.

And the conclusion come to in that case, being drawn under the seetion of 1857, seems to be unaffected by the change in 1862 from the section of 1860 above noticed.

The amendment of 1860 seemed to have removed the remaining disqualification as to this description of evidence, and to render it admissible in all cases where either husband or wife is a party to the record. It likewise embodied by way of specific provision the former rule as to confidential communications.

See as to the application of this rule, whilst that amendment remain

ed unaltered, Owen vs. Cawley, 22 How., 10; 13 Abb., 13. And whether the change of 1862 has effected any real alteration in the law, beyond the removal of the specific restriction, seems more than questionable. It may probably be held that the testimony is generally admissible (see Chamberlain vs. The People, supra), subject to such restrictions, with reference to grounds of public policy, as were before existent in law, but to no others.

It has been held that, under the present law of evidence, by which a party is now competent to testify on his own behalf in all cases, the former rule that an attorney could not be called upon to testify as to communications between him and his client is abolished, and that this privilege can no longer be claimed. Mitchell's case, 12 Abb., 249. See, however, Williams vs. Fitch, 18 N. Y., 546. As to what was or was not a privileged communication, Vide Woodruff vs. Husson, 32 Barb., 557. Likewise, as to the production of papers, Peck vs. Williams, 13 Abb., 68.

CHAPTER VI.

OF ADMISSIONS AND DEPOSITIONS.

§ 209. Admission of Writing.

THE Code provides the following remedy for facilitating the proof of documents upon the trial:

§ 388. (341.) Either party may exhibit to the other or to his attorney, at any time before the trial, any paper material to the action, and request an admission in writing of its genuineness. If the adverse party or his attor ney fail to give the admission within four days after the request, and if the party exhibiting the paper be afterwards put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense, to be ascertained on the trial, shall be paid by the party refusing the admission; unless it appear, to the satisfaction of the court, that there were good reasons for such refusal.

This provision stood by itself, as section 341, in 1848. In 1849, section 342 of 1848 was added to, and now forms part of it. This portion relates to discovery, and has been already cited and commented upon in chapter IV., supra.

This provision is simple in itself, and has not given occasion to any reported controversy.

Although not prescribed in terms, the more convenient course will