Digest.

WITNESS. By the true construction of § 390 of the Code, a party to an

action may, at the instance of the adverse party, be compelled by the process of subpæna duces tecum, not only to appear at the trial and submit to a personal examination, but to produce papers and books in his possession, precisely as any other witness may be so compelled. And a witness, when properly subpoenaed, is as much bound to produce books and papers in his posesession as evidence, as to testify orally,— and, his neglect of either is a contempt of court. (This seems to be adverse to Trotter agt. Latson, 7 How. P. R. 261.) Bonesteel agt. Lynde and others, 226.

In an action for a divorce for adultery, the defendant can not be examined as a witness for the plaintiff.

When a reference is ordered, in such a case, under the 64th rule, proof must be made before the referee, not only of the fact of adultery, but of all the other material facts charged in the complaint. Arborgast agt. Arborgast, 297.

The notice that an assignor will be examined, must specify the points upon which it is intended to examine him. Falon agt. Keese, 341. On a trial for murder, statements made by the defendant, upon oath, before the jury summoned to make inquisition concerning the death, and before he had been accused of the murder, are admissible as evidence for the prosecution.

Why? Because he was examined before the coroner's inquest in the capacity of a witness. He had not then been accused, or in any legal sense suspected of the crime. He had the same right as any other witness, to decline answering any question, if, in his opinion, the answer would tend to involve him in a criminal charge. Having testified, and having omitted to avail himself of his privilege to decline answering, his statements must be deemed free and voluntary. The People agt. John Hendrickson, Jr., 404.

The provisions of the Code, (§ 399,) requiring ten days' notice of the examination of an assignor as a witness, does not apply to Justices' Courts. Warren agt. Helmer, 419.