competent. Conviction for crime, not to exclude witness; how con viction proved. Clergymen, etc., close confessions. wife shall not be compelled to disclose a confidential communication, made by one to the other, during the marriage. In an action for criminal conversation, the plaintiff's wife 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. Laws of 1867, ch. 887 (7 Edm. St. 198), §§ 2 and 3, and Laws of 1876, ch. 426; 2 Wait's Pr. 256; 3 id. 121. The above quoted sections of the Laws of 1867 are not altered in substance by this act. Ch. 426, Laws of 1876, is so altered as to allow the wife, with the plaintiff's consent, to disclose any confidential communication had or made between herself and the plaintiff. See Hicks v. Bradner, 2 Abb. Ct. App. 362; 35 How. 118. § 832. A person, who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness: but the conviction be proved, for the purpose of affecting the weight of his testimay mony, 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. Entirely new. § 833. A clergyman, or other minister of any religion, shall not not to dis- 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. Physi cians not 2 R. S. 422, § 72, as amended by this act. The original has it, "minister of the gospel, or priest of any de nomination whatsoever." See 2 Wait's Pr. 659. § 834. A person, duly authorized to practice physic or surgery, to disclose shall not be allowed to disclose any information which he acquired professional informa tion. Attorneys and coun in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity. 2 R. S. 422, § 73. This act changes the original in letter, but not in substance. See 2 Wait's Pr. 659. § 835. An attorney or counsellor at law shall not be allowed to sellors not disclose a communication, made by his client to him, or his advice communi- given thereon, in the course of his professional employment. to disclose cations. Application of the last three sections. New as statute law, but established and in Yates v. Olmstead, 56 N. Y. (11 Sick.) 633, 66 Barb.347, and other cases. 2 Wait's Pr. 658. § 836. [Amended, 1877.] 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. New, and as amended, 1877. witness cused tifying. § 837. A competent witness shall not be excused from answer- When ing a relevant question, on the ground only that the answer may not extend to establish the fact, that he owes a debt, or is otherwise sub- from tes⚫ject 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. 2 R. S. 422, § 71. of party § 838. The testimony of a party, taken at the instance of the Evidence adverse party, orally or by deposition, may be rebutted by other may be evidence. Code Pro., § 393; Wait's Code, 741, 742. A party to an action cannot be compelled to submit to an examination concerning the whereabouts of certain books, of which, on oath, he has de- rebutted. sion by of corpo § 839. The admission of a member of an aggregate corporation, Admis who is not a party, shall not be received as evidence against the cor- member poration, unless it was made concerning and while engaged in a ration. transaction, in which he was the authorized agent of the corporation. 2 R. S. 424, § 80. sumptive of consid § 840. [Amended, 1877.] A seal upon an executory instrument, Seal, prehereafter executed, is only presumptive evidence of a sufficient con- evidence sideration, which may be rebutted, as if the instrument was not eration. sealed. Substituted for 2 R. S. 423, § 77, and as amended, 1877, by introducing the words, "hereafter executed." tion of certain § 841. A person, upon whose life an estate in real property de- Presumppends, who remains without the United States, or absents himself, in death in the State or elsewhere, for seven years together, is presumed to be cases. 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. 1 R. S. 700, § 6, as amended by substituting the phrase, without the United States," for the phrase, “be- 34 Before whom affidavits may be taken. 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. An oath or affidavit, required or authorized by law; oaths and 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 deputyclerk, 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. Id.; in special cases. Id.; with out the State. 2 R. S. 294, § 49, as amended. § 843. [Amended, 1877.] 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. The first sentence is new; the second is taken from 2 R. S. 573, § 11. § 844.* 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. New. mode of § 845. The usual mode of administering an oath, now practiced, General by the person who swears laying his hand upon and kissing the swearing. gospels, must be observed, where an oath is administered, except as otherwise specially prescribed in this article. 2 R. S. 424, § 82. kissing pels dis § 846. The oath must be administered in the following form, when to a person who so desires, the laying of the hand upon and kissing the gos the gospels being omitted: "You do swear, in the presence of the pensed ever-living God". While so swearing, he may or may not hold up his hand, at his option. 2 R. S. 424, § 83. with. affirma made. § 847. A solemn declaration or affirmation, in the following When form, must be administered to a person who declares that he has tion to be conscientious scruples against taking an oath, or swearing in any form: "You do solemnly, sincerely, and truly, declare and affirm " 2 R. S. 424, § 84. modes of § 848. [Amended, 1877.] If the court or officer, before which Other or whom a person is offered as a witness, is satisfied, that any pecu- swearing. liar 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. 2 R. S. 424, § 85, as amended, 1877, by substituting the words, "in lieu of " for the words, "connected with." persons § 849.* A person believing in a religion, other than the Chris- Swearing tian, may be sworn according to the peculiar ceremonies, if any, of not Chrishis religion, instead of as prescribed in section 845 or section 846 of this act. 2 R. S. 424, § 86. tians. may ex § 850. The court or officer may examine an infant, or a person Court apparently of weak intellect, produced before it or him, as a witness, amine to ascertain his capacity and the extent of his knowledge; and may witness. Swearing inquire of a person, produced as a witness, what peculiar ceremonies in swearing he deems most obligatory. 2 R. S. 425, § 89, as amended, so as to disconnect it from the two sections next preceding it, which have been rendered obsolete by art. 1, § 3, of the Constitution of 1846. Stanbro v. Hopkins, 28 Barb. 265. § 851. A person swearing, affirming, or declaring, in any form, any form, where an oath, is authorized by law, is lawfully sworn, and is guilty falsely in perjury. 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. 2 R. S. 425, latter part of § 90, as amended and extended. Mode of serving 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. 866. Records not to be removed by virtue of subpoena. 867. Production, etc., of book of account. 868. Books, etc., of corporation, how produced. 869. When personal attendance not required by subpoena duces tecum. § 852. A subpoena, issued out of the court, to compel the attendsubpoena ance of a witness, and, where the subpoena so requires, to compel of a court. him to bring with him a book or paper, must be served as follows: issued out 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. |