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§ 8

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§829-57 How Pr. 391; 16 Huw 121; 17 Hin

150;

TITLE 1

TITLE

CHAPTER IX.

EVIDENCE.

I.-GENERAL REGULATIONS RESPECTING EVIDENCE, AND THE
COMPETENCY AND MODE OF EXAMINATION OF A WITNESS.
COMPELLING THE ATTENDANCE AND TESTIMONY OF WIT-

NITLE II.

NESS.

E III.-DEPOSITIONS.

E IV. -DOCUMENTARY EVIDENCE.

LE V.-MISCELLANEOUS PROVISIONS.

TITLE I.

neral regulations respecting evidence, and the competency and mode of examination of a witness.

ARTICLE 1. Competency of a witness; evidence in particular cases.

2. Administration of an oath or affirmation.

ARTICLE FIRST.

COMPETENCY OF A WITNESS; EVIDENCE IN PARTICULAR CASES.

SECTION 828. No witness to be excluded by reason of interest, etc.

829. When party, etc., cannot be examined.

*830. Id.; husband or wife of party, etc.

831. When husband and wife not competent witnesses.

832. Conviction for crime, not to exclude witness; how conviction proved.

833. Clergymen, etc., not to disclose confessions.

834. Physicians not to disclose professional information.

835. Attorneys and counsellors not to disclose communications.

836. Application of the last three sections.

837. When witness not excused from testifying.

838. Evidence of party may be rebutted.

839. Admission by member of corporation.

840. Seal, presumptive evidence of consideration.
841. Presumption of death in certain cases.

cluded by

828. Except as otherwise specially prescribed in this title, a person No witness all not be excluded or excused from being a witness, by reason of his to be ex her interest in the event of an action or special proceeding; or reason of because he or she is a party thereto; or the husband or wife of a party etc. thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended.

interest,

ty, etc.,

829. Upon the trial of an action, or the hearing, upon the merits, When par special proceeding, a party, or a person interested in the event, cannot be a person from, through, or under whom, such a party or interested examined. "son derives his interest or title, by assignment or otherwise; shall

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TITLE 1.

When husband and

not be examined, as a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator, or survivor of a deceased person; or the committee of a lunatic; or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise; concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee, or person so deriving title or interest, is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concerning the same transaction or communication.

§ 830. This section was repealed by chap. 166 of the Laws of 1878. §831. A husband or a wife is not competent to testify against the wife not other, upon the trial of an action, or the hearing, upon the merits, of a competent special proceeding, founded upon an allegation of adultery; except to Id.; when prove the marriage. A husband or wife shall not be compelled to discompetent. close a confidential communication, made by one to the other, during

witnesses.

Conviction for crime

not to ex

ness; how

the marriage. In an action for criminal conversation, the plaintiff's wife is a competent witness for the defendant, as to any matter in controversy; except that she cannot, without the plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff.

§ 832. A person, who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness: but the conviction may be clude wit proved, for the purpose of affecting the weight of his testimony, either conviction by the record, or by his cross-examination, upon which he must answer any question, relevant to that inquiry; and the party cross-examining him is not concluded, by his answer to such a question.

proved.

Clergy

men, ete

not to dis

close con

fessions.

Physicians

close pro

§ 833. A clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs.

§ 834. A person, duly authorized to practice physic or surgery, shall not to dis- not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity.

fessional

information.

Attorneys

§ 835. An attorney or counsellor at law shall not be allowed to dis and coun- close a communication, made by his client to him, or his advice giver to disclose thereon, in the course of his professional employment.

sellors not

communications. Applica

§ 836. The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by th last three person confessing, the patient, or the client.

tion of the

sections.

When witness not excused

from testifying.

§ 837. A competent witness shall not be excused from answering : relevant question, on the ground only that the answer may tend t establish the fact, that he owes a debt, or is otherwise subject to a civi suit. But this provision does not require a witness to give an answe which will tend to accuse himself of a crime or misdemeanor, or t expose him to a penalty or forfeiture; nor does it vary any other rule respecting the examination of a witness.

154

ART. 2. Evidence of party

butted.

§ 838. The testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence. § 839. The admission of a member of an aggregate corporation, who may be reis not a party, shall not be received as evidence against the corporation, Admission unless it was made concerning and while engaged in a transaction, in by member which he was the authorized agent of the corporation.

of corpora

tion.

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

considera.

tion.

death in

§ 841. A person, upon whose life an estate in real property depends, Presumpwho remains without the United States, or absents himself, in the State tion of or elsewhere, for seven years together, is presumed to be dead, in an certain action or special proceeding, concerning the pro rty, in which his cases. death comes in question, unless it is affirmatively proved that he was alive within that time.

ARTICLE SECOND.

ADMINISTRATION OF AN OATH OR AFFIRMATION.

SECTION 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 witnesses.

851. Swearing falsely in any form, perjury.

oaths and

may be

§ 842. An oath or affidavit, required or authorized by law; except an Before oath to a juror or a witness upon a trial, an oath of office, and an oath whom required by law to be taken before a particular officer; may be taken amdavits before a judge, clerk, deputy-clerk, or special deputy-clerk, of a court, taken. 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. $843. Where an officer, person, board, or committee, has been here- Id.; in tofore, 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.

special

cases.

State.

§ 844. An oath or affidavit required, or which may be received, in an Id.; withaction, special proceeding, or other matter, may be taken, without the 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 acknowledgment and proof of deeds, to be recorded in the State; and,

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