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civil action, while going to the place of attendance, necessarily remaining there, and returning therefrom.

J. P.

1. This section does not exempt him from obeying any ordinary process of the Court, e.g., to attend and answer concerning his property, under a supplementary writ. Page v. Randall, 6 Cal. 32.

§ 416. Arrest of witness under subpæna void, may be discharged on affidavit.

The arrest of a witness contrary to the last section, shall be void; but an officer shall not be liable to the party for making the arrest in ignorance of the facts creating the exoneration, but shall be liable for any subsequent detention of the party, if such party claim the exemption and make an affidavit, stating:

1st. That he has been served with a subpoena to attend as a witness before a Court, officer, or other person ; specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and,

2d. That he has not been thus served by his own procurement, with the intention of avoiding an arrest.

3d. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and shall exonerate him from liability for discharging the witness when arrested.

J. P.

CHAPTER III.— Of the examination of parties to an action or pro

ceeding, and of persons for whose immediate benefit such action or proceeding is prosecuted or defended.

Sec. 417. No action for discovery of evidence shall be allowed. 418. A party may be examined for the adverse party in

the same manner as any other witness. 419. Such examination may be rebutted. 420. Penalty for refusal of a party to testify. 421. Party so called may be examined on his own behalf.

When adverse party may be called in rebuttal.

SEC. 422. A person for whose benefit an action is prosecuted

may testify as if a party. And a party may be

examined on his own behalf on notice. 423. Copartners, when parties, may be examined to prove

items of account.

§ 417. No action for discovery of evidence shall be allowed.

No action to obtain a discovery under oath, in aid of the prosecution or defense of another action or proceeding, shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner prescribed by this chapter.

J. P.; N. Y. Code, ý 389.

1. A judgment was had in the District Court in favor of the appellant, and against the respondent: Held, that after judgment against him, it is too late for plaintiff to file his bill for discovery in aid of his defense, on the ground that it was meritorious, and lies entirely within the knowledge of the judgment creditor. Norris v. Denton, 2 Cal. 378.

2. This section does not apply to prevent an examination of a debtor in a proceeding supplementary to an execution. Dunham v. Nicholson, 2 Sand. 636; Id. 231.

§ 418. A party may be examined for the adverse party in the same manner as any other witness.

A party to an action or proceeding may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties; and for that purpose may be compelled, in the same manner, and subject to the same rules of examination as any other witness, to testify at the trial, and he may be examined on a commission.

J. P.; N. Y. Code, \ 390.

1. Under our statute, the plaintiff may call as a witness any one of the adverse parties to the action, where there are several, and they are sued as joint tort-feasors. He is not bound to call all if he call one. Rosenbaum v. Hernberg, 17 Cal. 602.

2. In an action against defendants for damages for conspiring together to defraud plaintiffs of certain goods—the conspiracy being succesfully carried out by defendants, obtaining and disposing of the goods-H., one of the defendants, made a voluntary appearance, but interposed no defense. The other defendants answered and contested the case : Held, that H. was a competent witness for plaintiffs under our statute; and probably so at common law, especially as he did not object to testifying. Rosenbaum v. Hernberg, 17 Cal. 602.

3. A party who calls an adverse party to testify makes him a witness, and waives his incompetency to be heard for himself, or for his codefendant or coplaintiff. Turner v. McIlhaney, 8 Cal. 575.

4. On the trial of a cause, where defendant calls the plaintiff as a witness after his examination in chief, he has a right to testify on his own behalf, generally, as to the matters in issue. Drake v. Eakin, 10 Cal. 312.

5. Under the Code, a party to an action may not only be examined at the option of the adverse party, but may also be compelled to produce, on such examination,

civil action, while going to the place of attendance, necessarily remaining there, and returning therefrom.

J. P.

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J. P.

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CHAPTER III.— Of the examination of parties to an action or pro

ceeding, and of persons for whose immediate benefit such action or proceeding is prosecuted or defended.

SEC. 417. No action for discovery of evidence shall be allowed. 418. A party may be examined for the adverse party in

the same manner as any other witness. 419. Such examination may be rebutted. 420. Penalty for refusal of a party to testify. 421. Party 80 called may be examined on his own behalf.

When adverse party may be called in rebuttal.

SEC. 422. A person for whose benefit an action is prosecuted

may testify as if a party. And a party may be

examined on his own behalf on notice. 423. Copartners, when parties, may be examined to prove

items of account.

§ 417. No action for discovery of evidence shall be allowed.

No action to obtain a discovery under oath, in aid of the prosecution or defense of another action or proceeding, shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner prescribed by this chapter.

J. P.; N. Y. Code, $ 389.

1. A judgment was had in the District Court in favor of the appellant, and against the respondent: Held, that after judgment against him, it is too late for plaintiff to file his bill for discovery in aid of his defense, on the ground that it was meritorious, and lies entirely within the knowledge of the judgment creditor. Norris v. Denton, 2 Cal. 378.

2. This section does not apply to prevent an examination of a debtor in a proceeding supplementary to an execution. Dunham v. Nicholson, 2 Sand. 636; Id. 231.

§ 418. A party may be examined for the adverse party in the same manner as any other witness.

A party to an action or proceeding may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties; and for that purpose may be compelled, in the same manner, and subject to the same rules of examination as any other witness, to testify at the trial, and he may be examined on a commission.

J. P.; N. Y. Code, $ 390.

1. Under our statute, the plaintiff may call as a witness any one of the adverse parties to the action, where there are several, and they are sued as joint tort-feasors, He is not bound to call all if he call one. Rosenbaum v. Hernberg, 17 Cal. 602.

2. In an action against defendants for damages for conspiring together to defraud plaintiffs of certain goods—the conspiracy being succesfully carried out by defendants, obtaining and disposing of the goods-H., one of the defendants, made a voluntary appearance, but interposed no defense. The other defendants answered and contested the case: Held, that H. was a competent witness for plaintiffs under our statute; and probably so at common law, especially as he did not object to testifying. Rosenbaum v. Hernberg, 17 Cal. 602.

3. A party who calls an adverse party to testify makes him a witness, and waives his incompetency to be heard for himself, or for his codefendant or coplaintiff. Turner v. McIlhaney, 8 Cal. 575.

4. On the trial of a cause, where defendant calls the plaintiff as a witness after his examination in chief, he has a right to testify on his own behalf, generally, as to the matters in issue. Drake v. Eakin, 10 Cal. 312.

5. Under the Code, a party to an action may not only be examined at the option of the adverse party, but may also be compelled to produce, on such examination, books, papers, etc., which are under his control. Brett v. Brecknam, 32 Barb. 655.

6. The proper mode of practice in such cases is to proceed with the examination of the party, until it shall be ascertained whether he has under his control any, and if any, what books or papers admissible as evidence in the action, or necessary for the purposes of the examination; and then for the Judge before whom the exam. ination is had to direct what books and papers shall be produced, and when and where. Brett v. Brecknam, 32 Barb. 655.

$ 419. Such examination may be rebutted.

The examination of a party thus taken, may be rebutted by adverse testimony.

J. P.; N. Y. Code, \ 393.

§ 420. Penalty for refusal of a party to testify.

If a party refuse to attend and testify at the trial, or to give his deposition before trial, or upon a commission when required, his complaint, answer or reply, may be stricken out, and judgment be taken against him; and he may be also, in the discretion of the Court, proceeded against as in other cases for a contempt.

J. P.; N. Y. Code, $ 394.

§ 421. Party so called may be examined on his own behalf. When adverse party may be called in rebuttal.

A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf in respect to any matter pertinent to the issue. But if he testify to any new matter not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answer thereto; or discharge, when his answer would charge himself, such adverse party may offer himself as a witness on his own behalf in respect to such new matter, and shall be so received.

J. P.; N. Y. Code, $ 395.

1. Where a party is called as a witness by the other side, and, on his crossexamination, testifies to new matter, his opponent may be called on his own behalf, in rebuttal of this new matter. Jones et al. v. Love et al., 9 Cal. 68.

2. On the trial of cause, where defendant calls the plaintiff as a witness, after his examination in chief, he has a right to testify on his own behalf, generally, as to the matters in issue. Drake v. Eakin, 10 Cal. 312.

3. When the defendant calls the plaintiff as a witness, and the latter testifies to new matter not responsive to the enquiries put to him by the defendant, the defendant may offer himself as a witness on his own behalf, in respect to such new matter, but his testimony must be limited to an explanation or contradiction of such new matter. Dwinelle v. Henriquez, 1 Cal. 387.

§ 422. A person for whose benefit an action is prosecuted may

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