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memoriam if they relate to any matters that might be cognizable in any court of the United States.

When the testimony of any witness residing in any place not within the sovereignty of the United States is desired in any cause pending in any court of the District of Columbia, the same may be taken upon interrogatories and cross-interrogatories filed in the said court, and transmitted by said court under letters rogatory, addressed to some court of record in the foreign State in which said witness is then to be found.)

Sec. 1059. No witness shall be required, under the provisions of the preceding section, to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his deposition; nor shall any witness be deemed guilty of contempt for disobeying any subpæna directed to him by virtue of the said section, unless his fee for going to, returning from, and one day's attendance at the place of examination are paid or tendered to him at the time of the service of the subpæna. Sec. 1060. COMMISSION TO TAKE DEPOSITIONS.-On Secs. 144, 922

923. motion made in any common law action in the District, by a party thereto, the court may order a commission to issue to such person or persons as the court may name to take the deposition of any witness residing or being out of the District orally or on interrogatories and cross-interrogatories, to be filed and accompany such commission, ås may be provided by the rules of the court, and said commission shall be executed, returned, and published according to the practice in courts of equity: Provided, That such depositions shall not be admitted at the trial of the action if, at the time, the witness be present in the District and his attendance can be obtained by the process

of the court.

Sec. 1061. TESTIMONY IN EQUITY CAUSES.-In equity causes in the District the testimony of the witnesses may be taken in the manner provided by the rules of the Supreme Court of the United States for practice in equity, and of the supreme court of the District of Columbia not inconsistent therewith: Provided, The court may, in its discretion, for proper cause shown, order the testimony to be taken orally in its presence or under a commission, according to the usages of chancery, or before examiners, upon any reasonable notice as directed in the preceding section, as the court may order and direct; and according to the same usages the court may, upon application by any party interested, direct depositions to be taken in perpetuam rei memoriam, in relation to matters that may be cognizable in the court.

Sec. 1062. COMMISSIONS FROM COURTS OUT OF THE DisTRICT.—When a commission is issued by any court of the United States or of any State or Territory or of any place under the jurisdiction of the United States, for taking the testimony of witnesses within the District of Columbia, the same proceedings shall be had in relation thereto as are directed by sections eight hundred and sixty-eight and

sec. 876.

eight hundred and sixty-nine of the Revised Statutes of the United States.- Act of June 30, 1902 (32 Stat., Part I, p. 540).

(Repealed.) [Sec. 1062. COMMISSIONS FROM COURTS OUT OF THE DISTRICT.—When a commission is issued by any court of the United States or of any State for taking the testimony of a witness named therein within the District of Columbia, the same proceedings shall be had in relation thereto as are directed by sections eight hundred and sixty-eight and eight hun

dred and sixty-nine of the Revised Statutes of the United States.] Secs. 1064, 1067, Sec. 1063. COMPETENCY OF WITNESSES.—Except as 1073; R. S. D. C.,

herein elsewhere provided, no person shall be incompetent to testify in any civil action or proceeding by reason of his being a party thereto or interested in the result thereof; but, if otherwise competent to testify, he shall be competent to give evidence on his own behalf and competent and compellable to give evidence on behalf of any other

party to such action or proceeding. Ib., secs. 829, Sec. 1064. TESTIMONY OF SURVIVING PARTY.-If one 1065, 1066; Man. key. Willough- of the original parties to a transaction or contract has, by? 12.samp;: since the date thereof, died or become insane or otherwise Waggaman, 23 incapable of testifying in relation thereto, the other party Jonesv.Slaughter, thereto shall not be allowed to testify as to any transac34 LB: 46:38 5. tion with or declaration or admission of the said deceased Trail, 19:3; : or otherwise incapable party in any action between said R., 797: 38 L. R., other party or any person claiming under him and the 480; 2 D. C. App:; executors, administrators, trustees, heirs, devisees, as195 1 D. C. App. signees, committee, or other person legally representing 467: 13 D. C. App., the deceased or otherwise incapable party, unless he be 156; 1650. s.,38: first called upon to testify in relation to said transaction

or declaration or admission by the other party, or the opposite party first testify in relation to the same, or unless the transaction or contract was made or had with an agent of the said deceased or otherwise incapable party, and said agent testifies in relation thereto, or unless called to testify thereto by the court.

Sec. 1065. TESTIMONY OF DECEASED OR INSANE PARTY.If a party, after having testified at a time when he was competent to do so, shall die or become insane or otherwise incapable of testifying, his testimony may be given in evidence in any trial or hearing in relation to the same subject matter between the same parties or their legal representatives, as the case may be; and in such case the opposite party may testify in opposition thereto.- Act of June 30, 1902 (32 Stat., Part I, p. 540).

(Repealed.) [Sec. 1065. TESTIMONY OF DECEASED OR INSANE PARTY.-If a party, after having testified at a time when he was competent to do so, shall die or become insane or otherwise incapable of testifying, his testimony may be given in evidence in a subsequent trial in relation to the same subject matter between the same parties, or their legal representatives, as the case may be: and in such case the opposite party may testify in opposition thereto.]

Thompson 0. U. S., 30 D. C.

Secs. 1069, 964.

Sec. 1066. PARTNERS.- Where any of the original parties to a contract or transaction which is the subject of investigation are partners or other joint contractors, or jointly entitled or liable, and some of them have died or otherwise become incapable of testifying, any others with whom the contract or transaction was personally made or had, or in whose presence or with whose privity it was made or had, or admissions in relation to the same were made, shall not, nor shall the adverse party, be incompetent to testify because some of the parties or joint contractors, or those jointly entitled or liable, have died or otherwise become incapable of testifying. Sec. 1067. CONVICTION OF CRIME. No

person

shall be incompetent to testify, in either civil or criminal proceed- App.. 358. ings, by reason of his having been convicted of crime [other than perjury), but such fact may be given in evidence to affect his credit as a witness, either upon the cross-examination of the witness or by evidence aliunde; and the party cross-examining him shall not be concluded by his answers as to such matters. In order to prove such conviction of crime it shall not be necessary to produce the whole record of the proceedings containing such conviction, but the certificate, under seal, of the clerk of the court wherein such proceedings were had, stating the fact of the conviction and for what cause, shalí be sufficient. Sec. 1068. HUSBAND AND WIFE.-In both civil and

Mallery v. Frye, criminal proceedings, husband and wife shall be compe-21 D. C. App., 105 tent but not compellable to testify for or against each manic.. Llenor other.

24 D. C. App., 242; 12 D.C. App., 295; 7 D. C. App., 149; 17 D. C. App., 381; 10 D.C. App.,572. Sec. 1069. CONFIDENTIAL COMMUNICATIONS.-In neither civil nor criminal proceedings shall a husband or his wife be competent to testify as to any confidential communications made by one to the other during the marriage.

Sec. 1070. RECORD DEBT, PROOF OF.-An exemplification of the record under the hand of the keeper of the same, and the seal of the court or office where such rec

be made, shall be good and sufficient evidence to prove any record made or entered in any of the States or Territories of the United States; and the certificate of the party purporting to be the keeper of such record, accompanied by such seal, shall be prima facie evidence of that fact.

Sec. 1071. RECORD OF DEEDS AND WILLS.—The copy 27.0. App..395 of the record of any deed or other instrument of writing, iD.C, App: 224 not of a testamentary character, where the laws of the 46, sec. 2. State, Territory, or country where the same may be recorded require such record, and which has been recorded agreeably to such laws, and the copy of any will which such laws require to be admitted to probate and record, by judicial decree, and of the decree of the court admitting the same to probate and record, under the hand of the clerk or other keeper of such record and the seal of

81254°-11-18

Trometer v. D.C.,

ord may

Prudential Ins. Co. o. Lear, 31 D.

the court or office in which such record has been made, shall be good and sufficient prima facie evidence to prove the existence and contents of such deed, or will, or other instrument of writing, and that it was executed as it purports to have been.

Sec. 1072. PRODUCTION OF BOOKS AND PAPERS.-In an action at common law the court may, on motion, and on reasonable notice thereof, require the parties to produce books and writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might heretofore have been compelled to produce the same by the ordinary rules of proceeding in chancery.

Sec. 1073. PHYSICIANS, TESTIMONY OF.—In the courts c. App., 192; 36 of the District of Columbia no physician or surgeon shallLec. Poz.:80: Libia, be permitted, without the consent of the person afflicted, 33,726 3:105.c. or of his legal representatives, to disclose any information, 138; 38 L. R., 326. confidential in its nature, which he shall have acquired in

attending a patientin a professional capacity and which was necessary to enable him to act in that capacity: Provided, That this section shall not apply to evidence in criminal cases where the accused is charged with causing the death of or inflicting injuries upon a human being, and the disclosure shall be required in the interests of public justice.

Sec. 1073a. Whenever the court shall be satisfied that the party producing a witness has been taken by surprise by the testimony of such witness, such party may, in the discretion of the court, be allowed to prove, for the purpose only of affecting the credibility of the witness, that the witness has made to such party or to his attorney statements substantially variant from his sworn testimony about material facts in the cause; but before such proof can be given the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he made such statements and if so allowed to explain them.-Act of June 30, 1902. (32 Stat., p. 540.)

CHAPTER XXVI.

EXECUTION.

Byrne v. Morri. son, 25 D. C.

Minnix, 30 D. C.

Sec. 1074. WHEN ISSUED.-Where the right to issue an execution is not suspended by agreement or by an injunc- App., 76: 9 D.C. tion or by an appeal operating as a supersedeas, a writ of App., 548. execution may be issued immediately on the rendition of the judgment or at any time within three years thereafter: and where the right to issue the same is suspended by any of the causes aforesaid said writ may be issued within three years after the removal of the suspension, and every such writ shall be returnable on or before the sixtieth day after its date. Sec. 1075. ALIAS WRITS.--If the execution be issued

Moses v. U. S.

19 D.C. App., 290. and returned unsatisfied, in whole or in part, within said period of three years, an alias writ may be issued at any time during the life of the judgment.

Sec. 1076. RETURN.-If the return shall be omitted to be made on or before the return day expressed in the writ it may nevertheless be made afterwards as of that date.

Sec. 1077. SCIRE FACIAS.-If said writ shall not be Simpson v. issued within the time allowed therefor, as aforesaid, it App., 585; 29 D. shall not be issued until a scire facias has been issued D. C! PA'pp., 290; upon said judgment and a fiat has been rendered there- 19 D.C. App. 243 upon. Said fiat shall be deemed a renewal of the judg- 5 D. C. App., 350 ment, and the same rule shall apply thereto in relation to 38 L. R., 106.

, ; the issuing of execution thereon as to the original judgment.

Sec. 1078. FIAT.-At any time during the life of the Ib. original judgment the plaintiff may elect, instead of issuing execution thereon within the time allowed therefor, to issue a scire facias on the same and obtain a new judgment as aforesaid.

Sec. 1079. LIEN OF EXECUTION.-A writ of fieri facias issued upon a judgment of the supreme court of the App., 218; 27 d. District shall be a lien from the time of its delivery to the D. C. App., 245; marshal upon all the goods and chattels of the judgment :D.C: App., 1983 defendant, except such as may be exempted from levy 29 L. R., 12; 38 and sale by express provision of law, and shall also be a č: App., 169; 12 lien upon the equitable interest of the judgment defendant D. c. Fapp., 1; 21 in goods and chattels in his possession. (32 Stat., Part 1, p. 540.)

Sec. 1080. DEATH OF DEBTOR.—The death of the judgment debtor after the execution has been delivered to the marshal shall not affect his authority to proceed against the property bound by it.

Ohio Bank 0. Berlin, 26 D. C.

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