rei memoriam.

upon any reasonable notice as directed in the preceding section, as the -in perpetuam 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.

the District.

Commissions SEC. 1062. COMMISSIONS FROM COURTS OUT OF THE DISTRICT.-When from courts out of 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 hundred and sixty-nine of the Revised Statutes of the United States.

Competency of witnesses.

Testimony of surviving party.

party.

SEC. 1063. COMPETENCY OF WITNESSES.-Except as 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.

SEC. 1064. TESTIMONY OF SURVIVING PARTY.-If one of the original parties to a transaction or contract has, since the date thereof, died or become insane or otherwise incapable of testifying in relation thereto, the other party thereto shall not be allowed to testify as to any transaction with or declaration or admission of the said deceased or otherwise incapable party in any action between said other party or any person claiming under him and the executors, administrators, trustees, heirs, devisees, assignees, committee, or other person legally representing the deceased or otherwise incapable party, unless he be 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.

Testimony of de- SEC. 1065. TESTIMONY OF DECEASED OR INSANE PARTY. If a party, ceased or insane 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.

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 proceedings, 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, shall be sufficient.

SEC. 1068. HUSBAND AND WIFE.-In both civil and criminal pro- Husband and ceedings, husband and wife shall be competent but not compellable to wife. testify for or against each other.

SEC. 1069. CONFIDENTIAL COMMUNICATIONS.-In neither civil nor Confidentia communications. 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.

Record debt,

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 proof of. court or office where such record may 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 of the record of any deed or other instrument of writing, not of a testamentary character, where the laws of the 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 aws 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 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.

Record of deeds

and wills.

Production of

SEC. 1072. PRODUCTION OF BOOKS AND PAPERS.-In an action at common law the court may, on motion, and on reasonable notice thereof, books and papers. 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 of the District Physicians, of Columbia no physician or surgeon shall be permitted, without the privileged comconsent of the person afflicted, or of his legal representatives, to disclose any information, confidential in its nature, which he shall have acquired in attending a patient in 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.

CHAPTER TWENTY-SIX.

munication to.

Proviso. -exception.

SEC. 1074. WHEN ISSUED. Where the right to issue an execution is When issued. not suspended by agreement or by an injunction or by an appeal operating as a supersedeas, a writ of 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 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.

SUP R S VOL 2- -113

Alias writs.

Return.

Scire facias.

Fiat.

Lien of execution.

Death of debtor.

Judgment of justice of the peace.

Gn what fieri fa

SEC. 1077. SCIRE FACIAS.-If said writ shall not be issued within the time allowed therefor, as aforesaid, it shall not be issued until a scire facias has been issued upon said judgment and a fiat has been rendered thereupon. Said fiat shall be deemed a renewal of the judgment, and the same rule shall apply thereto in relation to the issuing of execution thereon as to the original judgment.

SEC. 1078. FIAT.--At any time during the life of the original judg ment 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 District shall be a lien from the time of its delivery to the marshal upon all the goods and chattels of the judgment defendant, except such as may be exempted from levy and sale by express provision of law.

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.

SEC. 1081. JUDGMENT OF JUSTICE OF THE PEACE.-An execution issued on a judgment of a justice of the peace shall not be a lien on the personal property of the judgment defendant except from the time when it is actually levied, and then it shall have priority over any execution issued out of said supreme court after said levy. It shall not be levied on real estate.

SEC. 1082. ON WHAT FIERI FACIAS MAY BE LEVIED.-The writ of cias may be levied. fieri facias may be levied on all goods and chattels of the debtor not exempt as aforesaid, and upon gold and silver coin, bank notes or other money, bills, checks, promissory notes or bonds, or certificates of stock in corporations owned by said debtor, and upon money owned by him in the hands of the marshal or of a constable charged with the execution of such writ, and such fieri facias issued from said supreme court may be levied on all leasehold and freehold estates of the debtor

Levy on money.

Levy on chattels pledged.

Appraisement.

Attachment, when issued.

-costs.

Scire facias unnecessary.

in land.

SEC. 1083. LEVY ON MONEY.-If the fieri facias is levied on money belonging to the judgment defendant the marshal shall not expose the same to sale, but shall account for it as money collected, but bills or other evidences of debt levied upon shall be sold as other personal property is sold, and the marshal is hereby authorized and empowered to indorse the same to pass title to the purchaser.

SEC. 1084. LEVY ON CHATTELS PLEDGED.-The interest of the debtor in personal chattels lawfully pledged for the payment of a debt or performance of a contract, or held by a trustee and in which the debtor's interest is only equitable, may be levied upon in the hands of the pledgee or trustee without disturbing the possession of the latter, and the lien thus obtained may be enforced by proceedings in equity.

SEC. 1085. APPRAISEMENT.-All property levied upon, except money, shall be appraised by two sworn appraisers and sold at public auction for cash; personal property after ten days' notice by advertisement, and leasehold and freehold estate in land after a twenty days' previous notice by advertisement, containing a description sufficiently definite to be embodied in a conveyance of the title.

SEC. 1086. ATTACHMENT, WHEN ISSUED.-An attachment may be issued upon a judgment either before or after or at the same time with a fieri facias:

Provided, That if costs are unnecessarily multiplied thereby they shall be charged to the party causing the same to be issued.

SEC. 1087. SCIRE FACIAS UNNECESSARY.-The said attachment may be issued at any time during the life of the judgment, without issuing a scire facias previously thereto.

SEC. 1088. ON WHAT ATTACHMENT MAY BE LEVIED.-An attachment On what attachmay be levied upon the judgment debtor's credits due him from third ment may be persons and upon his interest in letters patent for inventions issued by the United States.

levied.

SEC. 1089. INTERROGATORIES.-In all cases of attachment the plaintiff Interrogatories. may exhibit interrogatories in writing, in such form as may be allowed by the rules or special order of the court, to be served upon any garnishee concerning any property of the defendant in his possession or charge or any indebtedness of his to the defendant at the time of the service of the attachment or between the time of such service and the filing of his answers to said interrogatories; and the garnishee shall file his answers, under oath, to such interrogatories within ten days after service of the same upon him. In addition to the answers to written interrogatories required of him, the garnishee may, on motion, be required to appear in court and be examined orally, under oath, touching any property or credits of the defendant in his hands.

How attach

SEC. 1090. HOW ATTACHMENTS LEVIED. The attachment shall be levied upon credits of the defendant in the hands of a garnishee by ments levied. serving him with a copy of the writ of attachment and of the interrogatories accompanying the same, and a notice that any property or credits of the defendant in his hands are seized by virtue of the attachment. It may be levied upon debts due to the defendant upon any judgment or decree by a similar service upon the debtor owing the same.

Money in hands

SEC. 1091. MONEY IN HANDS OF AN OFFICER.-The said attachment may be levied upon money or property of the defendant in the hands of an officer. of the marshal or coroner, and shall bind the same from the time of service, and shall be a legal excuse to the officer for not paying or delivering the same as he would otherwise be bound to do.

How levied on

SEC. 1092. HOW LEVIED ON PATENT RIGHTS.-The said attachment may be levied upon any patent right of the defendant by the marshal patent rights. by leaving a copy of the writ with the Commissioner of Patents, with a notice that he has seized said patent rights, and for what purpose, and he shall return a copy of said notice with the writ. The said notice shall thereupon be recorded in the record of assignments in the Patent Office.

Preservation of

SEC. 1093. PRESERVATION OF PROPERTY SEIZED. The court may make all orders necessary for the preservation of the property attached, property seized. and if the same be perishable, or for other reasons a sale of the same shall be expedient, may order that the same be sold and the proceeds paid into court and held subject to its order.

Pleading to the

SEC. 1094. PLEADING TO THE ATTACHMENT.-Any garnishee or stranger to the suit who may make claim to the property attached as attachment. hereinafter provided, may plead to the attachment, and such plea shall be considered as raising an issue without replication, and any issue of fact thereby made may be tried by the court or by a jury impaneled for the purpose, if either party desire it.

Traversing gar

SEC. 1095. TRAVERSING GARNISHEE'S ANSWERS.-If any garnishee shall answer to interrogatories that he has no property or credits of nishee's answers. the defendant or less than the amount of the plaintiff's judgment, the plaintiff may traverse such answer as to the existence or amount of such property or credits, and the issue thereby made may be tried as provided in the last aforesaid section; and in such case, where judgment is rendered for the garnishee, the plaintiff shall be adjudged to pay to the garnishee, in addition to his taxed costs, a reasonable counsel fee; and if such issue be found for the plaintiff, judgment shall be rendered as if possession of the property or credits had been confessed by the garnishee.

Claims by third

SEC. 1096. CLAIMS BY THIRD PERSONS.-Any person may file his petition in the cause, under oath, at any time before the final dispo- persons.

property.

sition of the property attached or its proceeds, not being real estate, setting forth a claim thereto or an interest in or lien upon the same; and the court, without other pleadings, shall inquire into the claim, and, if either party request it, impanel a jury for the purpose, who shall be sworn to try the question involved as an issue between the claimant as plaintiff and the parties to the suit as defendants, and the court may make all such orders as may be necessary to protect any rights of the petitioner.

Judgment of SEC. 1097. JUDGMENT OF CONDEMNATION OF PROPERTY. Where the condemnation of attachment has been levied upon specific property, on the return by the marshal judgment of condemnation of the same may be entered, and so much thereof as may be necessary to satisfy the plaintiff's judg ment may be sold under a fieri facias; or, if said property shall have been sold under interlocutory order of the court, the proceeds, or so much thereof as may be necessary, shall be applied to the plaintiff's claim by order of the court.

Judgment SEC. 1098. JUDGMENT AGAINST GARNISHEE.-If a garnishee shall have against garnishee. admitted credits in his hands, in answer to interrogatories served upon him, or the same shall have been found upon an issue made as aforesaid, judgment shall be entered against him for the amount of credits admitted or found as aforesaid, not exceeding the amount of the plaintiff's judgment, and costs, and execution shall be had thereon not to exceed the credits in his hands; but if said credits shall not be immediately due and payable, execution shall be stayed until the same shall become due; and if the garnishee shall have failed to answer the interrogatories served on him, or to appear and show cause why a judgment of condemnation should not be entered, such judgment shall be entered against him for the whole amount of the plaintiff's judgment and costs, and execution shall be had thereon.

Condemnation

SEC. 1099. CONDEMNATION AND SALE OF PATENT RIGHTS.-If the and sale of patent property attached be a patent right, on the marshal's return judgment rights. of condemnation of the said property shall be entered and the marshal shall sell the same under fieri facias at public auction in the same manner as real estate. Any patent right condemned and sold as aforesaid shall be assigned by the marshal to the purchaser in the same manner in which such assignments are made by private persons, and his said assignment may be recorded in the proper book or record of assignment in the Patent Office.

sold

Delivery of pos- SEC. 1100. DELIVERY OF POSSESSION OF PROPERTY SOLD.-When real session of property estate is sold by virtue of any execution, and the judgment defendant or any person claiming under him since the rendition of the judgment is in actual possession of the property and refuses to deliver possession thereof to the purchaser upon demand made therefor, it shall be lawful for the court, on the application of the purchaser, to require the person so in possession to show cause why possession should not be delivered according to said demand, and, if no good cause be shown, to issue a writ of habere facias possessionem, requiring the marshal to put the purchaser in possession. If the party in possession shall allege under oath a title derived from the judgment debtor prior to the judgment or a title superior to that of the defendant, said writ shall not issue, but the purchaser may have his remedy by an action of ejectment or the summary remedy before a justice of the peace as herein provided in subchapter one of chapter one.

Change of marshal.

Defective sale.

SEC. 1101. CHANGE OF MARSHAL. -If the marshal die, be removed from office, or become otherwise disqualified from executing a writ of execution received by him, the same may be executed and returned by his deputy or successor in office.

SEC. 1102. DEFECTIVE SALE. If upon the sale of property under execution the title of the purchaser is invalid by reason of a defect in the proceedings, the purchaser may be subrogated to the rights of the