§ 827. Where a provision of this act authorizes the court to approve erences in an undertaking, or the sureties thereto; or to make an examination or TITLE 6. Special ref certain cases. inquiry; or to appoint an appraiser, receiver or trustee; it may direct a reference, to one or more persons designated in the order, either to make the approval, examination, inquiry or appointment, or to report the facts to the court, for its action thereupon. And where, according to the practice of the court of chancery, on the thirty-first day of December, eighteen hundred and forty-six, a matter was referable to the clerk, or to a master in chancery, a court having authority to act thereupon, may direct a reference to one or more persons, designated in the order, with the powers which were possessed by the clerk, or the master in chancery, except where it is otherwise specially prescribed by law. 152 TITLE 1 CHAPTER IX. EVIDENCE. TITLE I. GENERAL REGULATIONS RESPECTING EVIDENCE, AND THE COMPETENCY AND MODE OF EXAMINATION OF A WITNESS. TITLE II.-COMPELLING THE ATTENDANCE AND TESTIMONY OF WIT General 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. cluded by § 828. Except as otherwise specially prescribed in this title, a person No witness shall not be excluded or excused from being a witness, by reason of his to be exor 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 te 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 of a special proceeding, a party, or a person interested in the event, cannot be or a person from, through, or under whom, such a party or interested examined. person derives his interest or title, by assignment or otherwise; shall 1 TITLE 1. Evidence of dece dent, when it may be read. When husband and wife not witnesses. 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. Where a party has died since the trial of an action, on the hearing upon the merits of a special proceeding, the testimony of the decedent, or of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing by either party, subject to any other legal objection to the competency of the witness, or to any legal objection to his testimony or any question put to him. § 831. A husband or wife shall not be compelled, or without consent of the other if living, allowed to disclose a confidential commucompetent nication, made by one to the other, during the marriage. In an action Id.; when for criminal conversation, the plaintiff's wife is not a competent witness for the plaintiff, but she 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. competent. Conviction for crime not to ex. ness; how clude wit conviction proved. Clergy men, etc., not to dis close con fessions. Physicians close pro § 832. A person, who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness in a civil or criminal action or special proceeding; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either 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. § 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 attendfessional ing a patient, in a professional capacity, and which was necessary to tion. enable him to act in that capacity. informa Attorneys § 835. An attorney or counsellor at law shall not be allowed to disand coun- close a communication, made by his client to him, or his advice given to disclose thereon, in the course of his professional employment. sellors not communications. Applica tion of the last three sections. When witness not excused from testi fying. § 836. The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient, or the client. § 837. A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the fact, that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or misdemeanor, or to expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness. 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 sumptive rebutted, as if the instrument was not sealed. evidence of 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 property, 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. whom 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 oaths and required by law to be taken before a particular officer; may be taken atidavits 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. cases. § 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 special 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. 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, TITLE 2. General mode of 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 signature, as are required to entitle a deed acknowledged before 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. § 845. The usual mode of administering an oath, now practiced, by swearing. the person who swears laying his hand upon and kissing the gospels, must be observed, where an oath is administered, except as otherwise specially prescribed in this article. When kissing the gospels dispensed with. When affirmation § 846. 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 everliving God". While so swearing, he may or may not hold up his hand, at his option. § 847. A solemn declaration or affirmation, in the following form, to be made. 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". Other modes of § 848. If the court or officer, before which or whom a person is swearing. 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. § 849. A person, believing in a religion other than the Christian, Christians. may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section eight hundred and fortyfive or section eight hundred and forty-six of this act. Swearing persons not Court may examine witness. Swearing falsely in § 850. The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness, 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. § 851. A person swearing, affirming or declaring, in any form, where any form, 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. perjury. TITLE II. Compelling the attendance and testimony of a witness SECTION 852. Mode of serving subpœna issued out of a court. 854. Subpoena to be issued by judge, etc. 855. Penalty for disobeying subpoena; warrant for witness 857. Contents of warrant. 858. To whom directed; how executed. 859. Qualification of preceding sections. 860. Witness exempt from arrest. |