executed or offered for probate from becoming a witness, as to its preparation and execution in case such attorney is one of the subscribing witnesses thereto. In an action for the recovery of damages for a personal injury the testimony of a physician or surgeon attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary, or other charitable institution shall be taken before a referee appointed by a judge of the court in which such action is pending; provided, however, that any judge of such court at any time in his discretion may notwithstanding such deposition. order that a subpoena issue for the attendance and examination of such physician or surgeon upon the trial of the action. In such case a copy of the order shall be served, together with the subpoena. Sections eight hundred and seventy-two, eight hundred and seventy-three, eight hundred and seventy-four, eight hundred and seventy-five, eight hundred and seventy-six, eight hundred and seventy-nine, eight hundred and eighty, cight hundred and eighty-four and eight hundred and eighty-six of this code apply to the examination of a physician or surgeon as prescribed in this section. The waivers herein provided for must be made in open court. on the trial of the action, or proceeding, and a paper executed by a party prior to the trial, providing for such waiver shall be insufficient as such a waiver. But the attorneys for the respective parties, may prior to the trial, stipulate for such waiver, and the same shall be sufficient therefor. Am'd by ch, 416 of 1877; ch. 391 of 1891; ch. 514 of 1892; ch. 295 of 1893; an1 ch. 53 of 1899. § 837. When witness not excused from testifying. 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. From 2 R. S. 405, Part 3, ch. 7, tit. 3, § 71 (2 Edm. 422). § 838. Evidence of party may be rebutted. The testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence. From Co. Proc. § 393. § 839. Admission by member of corporation. The admission of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation, unless it was made concerning and while engaged in a transaction in which he was the authorized agent of the corporation; or unless it was made while a member of such corporation and testifying as a witness concerning a transaction of the corporation, when the official record of such testimony shall be received. From 2 R. S. 407, Part 3, ch. 7. tit. 3, § 80. Am'd by ch. 384 of 1903. In effect May 6, 1903. § 840. Seal, presumptive evidence of consideration. A seal upon an executory instrument, hereafter executed, is only presumptive evidence of a sufficient consideration, which may be re butted, as if the instrument was not sealed. From 2 R. S. 406, Part 3, ch. 7, tit 3, § 77. Am'd by ch. 416 of 1877. § 841. Presumption of death in certain cases. A person upon whose life an estate in real property depends, who remains without the United States, or absents himself in the state or 229 elsewhere for seven years together, is presumed to be dead in an action or special proceeding concerning the property in which his death comes in question, unless it is affirmatively proved that he was alive within that time. And where in any action of partition in this state any portion of the proceeds of the sale of real property is or has been paid into court, or paid to the treasurer of any county for any unknown heirs, and has remained unclaimed for twenty-five years, after such payment by any person entitled thereto, the lapse of twenty-five years after such payment raises the presumption of the death of such unknown heirs at the time of the sale of such real property and before such payment, and after the lapse of twenty-five years after such payment it shall be presumed that there were no such unknown heirs living at the time of such sale or payment, and in any action or proceeding taken for the purpose of distributing and paying over such proceeds, all such unknown heirs are presumed and they shall be presumed to have been dead at the time of such sale and before such payment into court, or to the treasurer of any county. From R. S. 749, Part 2, ch. 1, tit. 5, § 6. ARTICLE SECOND. Administration of an Oath, or Affirmation. SEC. 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 witness. 851. Swearing falsely in any form, perjury. § 842. Before whom oaths and affidavits may be taken. An oath or affidavit, required or authorized by law; except an oath to a juror or a witness upon a trial, an oath of office, and an oath required by law to be taken before a particular officer; may be taken before a judge, clerk, deputy-clerk, or special deputy-clerk, of a court, 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. From 2 R. S. 284, Part 3, ch. 3, tit. 2, § 49. § 843. Id.; in special cases. Where an officer, person, board or committee, has been heretofore, 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. From 2 R. S. 552, Part 3, ch. 8, tit. 17, § 11. Am'd by ch. 416 of 1877. § 844. Id.; without the State. An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken without 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. 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. Am'd by ch. 416 of 1877. § 845. General mode of swearing. Except as otherwise specially prescribed in this article, when an oath is administered, the witness shall lay his hand on the gospels and express assent to the oath, and it shall be according to the present prac tice except that the witness need not kiss the gospels. From 2 R. S. 407, Part 3, ch. 7, tit. 3. § 82. Am'd by ch. 340 of 1899. § 846. When kissing the gospels dispensed with. The oath must be administered in the following form to a person who so desires, the laying of the hand upon the gospels being omitted: "You do swear, in the presence of the ever-living God." While so swearing, he may or may not hold up his hand at his option. From Id., § 83. Am'd by ch. 340 of 1899. 8 847. When affirmation to be made. A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form: "You do solerinly, sincerely, and truly, declare and affirm." From Id., § 84. § 848. Other modes of swearing. If the court or officer before which or whom a person is offered as a witness, is satisfied, that any peculiar mode of swearing, in lieu of, or in addition to laying the hand upon 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. From Id., § 85. Am'd by ch. 416 of 1887, and ch. 340 of 1899. § 849. Swearing persons not Christians. A person, believing in a religion other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section eight hundred and forty-five or section eight hundred and forty-six of this act. From Id., § 86. Am'd by ch. 416 of 1877. § 850. Court may examine witness. 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. From Id., § 89. § 851. Swearing falsely in any form, perjury. A person swearing, affirming, or declaring, in any form, where 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 the gospels. From Id., § 90. Am'd by ch. 340 of 1899. TITLE II. Compelling the attendance and testimony of a witness. SEC 852. Mode of serving subpoena issued out of a court. 853. Penalty for disobedience. 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. 861. When to be discharged from arrest. 862. By whom witness may be discharged. 863. Arrest, when void; penalty. 864. Sheriff not to be liable, unless affidavit is made. 865. Application of foregoing provisions to judgments. 868. Books, etc., of corporation, how produced. 869. When personal attendants not required by subpoena duces tecum. § 852. Mode of serving subpoena issued out of a court. A subpœna, issued out of the court, to compel the attendance of a witness, and, where the subpoena so requires, to compel him to bring with him a book or paper, must be served as follows: 1. The original subpoena must be exhibited to the witness. 2. A copy of the subpoena, or a ticket containing its substance. must be delivered to him. 3. The fees allowed by law, for travelling to, and returning from, the place where he is required to attend, and for one day's attendance, must be paid or tendered to him. From 2 R. S. 400, Part 3, ch. 7, tit. 3, § 42. § 853. Penalty for disobedience. A person so subpoenaed, who fails, without reasonable excuse, to obey the subpoena, or a person who fails, without reasonable excuse, to obey an order, duly served upon him. made by the court or a judge, in an action, before or after final judgment therein, requiring him to attend and be examined, or so to attend, and bring with him a book or a paper, is liable, in addition to punishment for contempt, for the damages sustained by the party aggrieved in consequence of the failure, and fifty dellars in addition thereto. Those sums may be recovered in one action, or in separate actions. If he is a party to the action in which he was subpoenaed, the court may, as an additional punishment, strike out his pleading. From Id., § 43. § 854. Subpoena to be issued by judge, etc. When a judge, or an arbitrator, referee, or other person, or a board or committee, or a committee of either house of the legislature, or a joint committee thereof, duly empowered by resolution or act to sit and take testimony during the session thereof, or after the adjournment thereof, has been heretofore or is hereafter expressly authorized by law to hear. try or determine a matter, or to do any other act in an official capacity, in relation to which proof may be taken, or the attendance of a person |