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51. Where the vendee of a lot of wheat released his vendor from all damage by reason of any implied warranty of the title to the wheat, which was then iw te gation between the vendee and a third party snehral petent witness. Paiga v_DIAZ


wwverse, nor a party being a

Amendment tu See. 394.-Paused March 16th, 1863.

[Took effect immediately.] $ 394. The following persons shall not be witnesses :

First-Those who are of unsound mind at the time of their proluction for examination.

Second-Children under ten years of age, who, in the opinion of the Court, appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.

Third-Mongolians, Chinese, or Indians, or persons having onehalf or more of Indian blood, in an action or proceeding wherein a white person is a party.

FourthPersons against whom judgment has been rendered upon a conviction for a felony, unless pardoned by the Governor, or such judgment has been reversed on appeal.

2.sy, miso paruvneu by the Governor, or such judgment has been reversed on appeal."

J. P.

1. There is no precise age within which children are excluded from giving testimony. Their competency is to be determined, not by their age, but by the degree of their understanding and knowledge. The People v. Bernal, 10 Cal. 66.


2. It is for the Court to decide the question of their competency when they are offered as witnesses. Id.

3. If over fourteen years of age, the presumption is that they possess the req. uisite knowledge and understanding ; but if under that age, the presumption is otherwise, and it must be removed upon their examination by the Court, or under its direction and its presence, before they can be sworn.

4. People v. Hall, (4 Cal. 339) excluding Chinese witnesses in suits to which white persons are parties, affirmed. Speer v. See Yup Co., 13 Cal. 73.

5. Where a witness, being sworn, stated that he was fourteen years old and a Chileno, and did not know “the obligation of an oath; whereupon the Judge explained to him the nature of such obligation, and he was then permitted to testify-the other party objecting that he did not know the obligation of an oath : Held, that the witness was competent. Fuller v. Fuller, 17 Cal. 605.

§ 395. Husband and wife shall not be witnesses for or against each other.

A husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband; nor can either, during the marriage, or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage. But this exception shall not apply to an action or proceeding by one against the other.

J. P.

1. The wife cannot be a witness in an action in which her husband is a party, whether she be a party or not. McCondray v. Wardle, 7 Abb. Pr. R. 3.

§ 396. An attorney shall not be examined as to communications made by a client without consent.

An attorney or counselor shall not, without the consent of his client, be examined as a witness as [to] any communication made by the client to him, or his advice given thereon, in the course of professional employment.

J. P.

1. Communications made by a client to the clerk of his attorney in an action pending, to enable the clerk to draw the complaint in the action, are privileged, and the clerk cannot testify thereto against the client. (Jackson v. French, 3 Wend. 337; Taylor v. Foster, 2 Carr. & P. 195; Bowman v. Norton, 5 Id. 177 ; King v. Inhabitants of Boddington, 8 Dow. & Ry. 726 ; Power v. Kent, i Cow. 211); Sibley v. Waffle, 16 N. Y. (2 E. P. Smith's) R. 180.

2. The refusal of a witness to produce papers acknowledged to be in his possession for the reason that it would be a breach of his privilege as attorney, is assuming the right of determining for himself the question of privilege, which is not his province, but that of the Court; and his refusal to produce the papers is a contempt.

Mitchell's Case, 12 Abb. Pr. R. 249. 3. An attorney having papers of his client in his possession in Court, which are required as evidence in the case, is not privileged from producing them; at least, for the purpose of identification. The People ex rel. Mitchell v. The Sheriff of N. Y., 7 Abb. Pr. R. 96.


$ 397. Nor a priest as a confession.
A clergyman or priest shall not, without the consent of the

person making the confession, be examined as a witness as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs.

J. P.

§ 398. Nor a physician as to any information necessarily acquired in that capacity.

[1861.] A licensed physician or surgeon shall not, without the consent of his patient, be examined as a witness as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient; provided, however, in any suit or prosecution against a physician, or surgeon, for malpractice, if the patient, or party suing or prosecuting, shall give such consent, and any such witness shall give testimony, then such physician or surgeon defendant, may call any other physicians or surgeons as witnesses, on behalf of defendant without the consent of such patient, or party suing or prosecuting.

J. P. 1. The provisions of 2 (N. Y.) Rev. Stat. 406, $ 73, forbidding disclosure of confidential communications by a patient to his physician, do not preclude the physician from testifying to the nature of the disease and the character of the treatment, when he brings an action to recover for his services. Kendall v. Grey, 2 Hilt. 300.

$ 399. Nor a public officer as to communications made in official confidence.

A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure:

J. P.

$ 400. The Judge, or any juror, may be a witness.

The Judge himself, or any juror, may be called as a witness by either party ; but in such case it shall be in the discretion of the Court or Judge to order the trial to be postponed or suspended, and to take place before another Judge or jury.

J. P.

Amendment to Sec. 401.--Passed April 25th, 1863.

[Takes effect sixty days after passage.] § 401. When a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him. Any person, a resident of the proper county, may be summoned by any Court or Judge to appear before such Court or Judge to act as interpreter in any action or proceeding. The summons shall be served and returned in like manner as a subpoena. Any person so summoned shall, for a failure to attend at the time and place named in the summons, be deemed guilty of a contempt, and may be punished accordingly.


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Sec. 402. Subpanas may require witnesses alone, or to bring

books, etc., but not more than thirty miles if out of

the county.
403. Subpæna shall be issued, in what cases.
404. Service of subpæna.
405. Service on concealed witness.
406. Person present may be required to testify without

407. A witness duly served shall attend as required.
408. Witness shall answer pertinent questions ; exceptions.
409. Penalty for disobedience to subpæna, etc.
410. Witness disobeying subpæna shall forfeit one hundred

dollars and all damages.
411. If witness fail to attend, the Court may issue a

412. If witness be a prisoner, an order for his examination

or production may be made.
413. Such order can be made only upon affidavit.
414. When imprisoned, witness may be produced or his

deposition taken.
415. Witness duly subpoenaed exempt from arrest in a civil


Sec. 416. Arrest of witness under subpoena void; may be dis

charged on affidavit.

§ 402. Subpoenas may require witnesses alone, or to bring books, etc., but not more than thirty miles if out of the county.

[1855.] A subpoena may require not only the attendance of the person to whom it is directed, at a particular time and place, to testify as a witness, but may also require him to bring any books, documents, or other things under his control, to be used as evidence. No person shall be required to attend as a witness before any Court, Judge, Justice, or any other officer out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial.

J. P.

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§ 403. Subpoena shall be issued, in what cases. [1859.] The subpoena shall be issued as fol'

1st. To require attendance before a Court, ob es ist der er issue therein, it shall be issued in the name and character the Court before which the attendance is requir issue is pending;

2d. To require attendance out of the Cour Justice, or other officer authorized to administer timony in any matter under the laws of this Stat by the Judge, Justice, or any other officer befor ance is required;

3d. To require attendance before a commiss take testimony by a Court of a foreign country States, or of any other State in the United States, or of any other district or county within this State, it may be issued by any Judge, or Justice of the Peace, in places within their respective jurisdictions, with like power to enforce attendance, and upon certificate of contumacy to said Court, to punish contempt of their process, as such Judge or Justice could exercise if the subpoena directed the attendance of the witness before their Courts in a matter pending therein.

J. P.

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