CHAPTER IX. TITLE I. General Regulations TITLE TITLE respecting Evidence, and the Competency and Mode of Exami • II.- Compelling the Attendance and Testimony of - · Depositions. TITLE IV.- Documentary Evidence. 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. Set. 828. No witness to be excluded by reason of interest, etc. 829. When party, etc., cannot be examined. 830. Testimony of party or witness since deceased or insane or who, being 831. When husband and wife not competent witnesses. tent. 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. $35. 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. 841. Presumption of death in certain cases. 841a. Testimony of surveyor and proof of standard of measurement. 841b. Trial and burden of proof of contributory negligence. 841c. Recitals as to heirship in deeds. § 828. No witness to be excluded by reason of interest, etc. Except as otherwise specially prescribed in this title, a person shall not be excluded or excused from being a witness, by reason of his or her interest in the event of an action or special proceeding; or because he or she is a party thereto; or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended. From Co. Proc., § 398; L. 1867, c. 887, § 1. § 829. [Am'd, 1877, 1881. When party, etc., cannot be examined. Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise.. shall 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 1300 title or interest from, through or under a deceased person or lunatic, by From Co. Proc., § 399. Am'd by L. 1877, c. 416; L. 1881, c. 703. § 830. [Added, 1879; am'd, 1893, 1896, 1899, 1911.] Testimony of party or witness since deceased or insane or who, being a nonresident, has departed from the state, together with all exhibits or documents proved during such testimony. Where a party or witness has died or become insane or, being a nonresident of this state, has departed from the state since or during the trial of an action now or hereafter pending, or since or during the hearing upon the merits of a special proceeding now or hereafter pending, the testimony of the decedent or insane person or of such nonresident who has departed from the state, 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, or at the same trial or hearing, either in court or before the same or a new referee, together with all exhibits and documents read in evidence in connection with, or as a part of the giving of such testimony, may be given or read in evidence at a new trial or hearing or at a continuation of the same trial or hearing either in court or before the same or a new referee, or upon any subsequent trial or hearing, either in court or before the same or a new referee, of the same subject-matter in the same or another action or special proceeding between the same parties to such former trial or hearing or their legal representatives, by either party to such new trial or hearing, or to such continuation of the same trial or hearing either in court or before the same or a new referee, or to such subsequent action or special proceeding either in court or before the same or a new referee, subject to any other legal objection to the competency of the witness, or to any other legal objection to his testimony or any question put to him, or to any other legal objection to such exhibits and documents. Such testimony, exhibits and documents proven by oath to have been so previously taken or read in evidence may be so given or read in evidence; or the original stenographic notes of such testimony taken by a stenographer who has since died or become incompetent may be so read in evidence by any person whose competency to read the same accurately is established to the satisfaction of the court or officer presiding at the trial of such action or special proceeding. Added by L. 1879, c. 542. Am'd by L. 1893, c. 595; L. 1896, c. 563; L. 1899, c. 352; L. 1911, c. 764 (in effect Sept. 1, 1911). § 831. [Am'd, 1877, 1879, 1880, 1887, 1915.] When husband and wife not competent witnesses; when competent. A husband or wife is not competent to testify against the other upon the trial of an action, or the hearing upon the merits of a special proceeding founded upon an allegation of adultery, except to prove the marriage, or disprove the allegation of adultery. However, if upon such trial or such hearing the party against whom the allegation of adultery is made produces evidence tending to prove any of the defenses thereto mentioned in section 1758 of this act, the other party is competent to testify in disproof of any such defense. A husband or wife shall not be compelled, or without consent of the other, if living, allowed to disclose a confidential communication, made by one to the other during (308) (34 TRIAL 127. marriage. In an action 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. From L. 1867, c. 887, §§ 2, 3; L. 1876, c. 426. Am'd by L. 1877, c. 416; L. 1879, c. 542; L. 1880, c. 149; L. 1887, c. 103; L. 1915, c. 181 (in effect April 3, 1915). § 832. [Am'd, 1879.] Conviction for crime not to exclude witness; how conviction proved. 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 crossexamination, 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. New. Am'd by L. 1879, c. 542. § 833. Clergymen, etc., not to disclose confessions. 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. From 2 R. S. 406 (Part 3, c. 7, tit. 3), § 72. § 834. [Am'd, 1904, 1905.] Physicians or professional or registered nurses not to disclose professional information. A person duly authorized to practice physic or surgery, or a professional or registered nurse, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity; unless, where the patient is a child under the age of sixteen, the information so acquired indicates that the patient has been the victim or subject of a crime, in which case the physician or nurses may be required to testify fully in relation thereto upon any examination, trial or other proceeding in which the commission of such crime is a subject of inquiry. From Id., § 73. Am'd by L. 1904, c. 331; L. 1905, c. 331 (in effect Sept. 1, 1905). This last amendment provides that "nothing in this act contained shall affect any actions or proceedings now pending." § 835. [Am'd, 1896.] Attorneys and counsellors not to disclose communications. An attorney or counsellor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment, nor shall any clerk, stenographer or other person employed by such attorney or counsellor be allowed to disclose any such communication or advice given thereon. New. Am'd by L. 1896, c. 564 (in effect Sept. 1, 1896). § 836. [Am'd, 1877, 1891, 1892, 1893, 1899, 1904.] Application of the last three sections. The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. But a physician or surgeon or a professional or registered nurse, may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, し when the provisions of section 834 have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving husband, widow or any heir-at-law or any of the next of kin, of such deceased, or any other party in interest. But nothing herein contained shall be construed to disqualify an attorney in the probate of a will heretofore executed or offered for probate or hereafter to be 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, or of a professional or registered nurse 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 or professional or registered nurse, upon the trial of the action. In such case a copy of the order shall be served, together with the subpoena. Sections 872, 873, 874, 875, 876, 879, 880, 884 and 886 of this code apply to the examination of a physician or surgeon or a professional or registered nurse, 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. New. Am'd by L. 1877, c. 416; L. 1891, c. 381; L. 1892, c. 514; L. 1893, c. 295; L. 1899, c. 53; L. 1904, c. 331 (in effect Sept. 1, 1904). § 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, c. 7, tit. 3), § 71. § 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. [Am❜d, 1903.] 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, c. 7, tit. 3), § 80. Am'd by L. 1903, c. 384 (in effect May 6, 1903). § 840. [Am'd, 1877.] Seal, presumptive evidence of consideration. A seal upon an executory instrument, hereafter executed, is only presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed. From 2 R. S. 406 (Part 3, c. 7, tit. 3), § 77. § 841. [Am'd, 1889, 1891.] 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 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 1 R. S. 749 (Part 2, c. 1, tit. 5), § 6. Am'd by L. 1889, c. 40; L. 1891, c. 364. § 841a. [Added, 1909.] Testimony of surveyor and proof of standard of measurement. No surveyor shall give evidence in any cause depending in any of the courts of this state, or before arbitrators, respecting the survey or measurement of lands which he may have made, unless if required, either such surveyor shall make oath, or it shall otherwise be shown that the, chain or measure used by him was conformable to the standards of the state which were the standards of the state at the time such survey was made. An official certificate of any state, county, city, village or town sealer elected or appointed pursuant to the laws of this state, or the oath of such surveyor, that such chain or measure conformed to the state standard which shall have been furnished any such sealer pursuant to the provisions of the laws of this state, shall be prima facie evidence of such conformity, and an official certificate made by any such sealer that the implement used in measuring such chain or other measure was the one provided under such laws for such purposes, shall be prima facie evidence of that fact. From L. 1851, c. 134, § 33, as am'd by L. 1893, c. 101, § 1. Added by L. 1909, c. 65 (in effect Feb. 17, 1909). § 841b. [Added, 1913.] Trial and burden of proof of contributory negligence. On the trial of any action to recover damages for causing death the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant. Added by L. 1913, c. 228 (in effect Sept. 1, 1913). § 841c. [Added, 1913.] Recitals as to heirship in deeds. Hereafter, in any proceeding, suit or action pending or hereafter brought, in any of the courts of this state, any deed, mortgage, lease, release, power of attorney, or other instrument more than thirty years old, executed for the purpose of transferring the title to or interest in 2111 |