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testify as if a party. And a party may be examined on his own behalf on notice.

[1861.] A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner and subject to the same

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contract is examined as a witness on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter in his own behalf, and shall be so received, and to any matter that will discharge him from any liability that the testimony of the assignor tends to render him liable for. But such assignor shall not be permitted to be examined on behalf of any person deriving title through or from him, against an assignee or an executor, or administrator, unless the other party to such contract or thing in action, whom the defendant or plaintiff represents, is living, and his testimony can be procured for such examination; nor at least ten days, notice of such intended examination of the assignor, specifying the points upon which he is intended to be

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 examination is had to direet what books and papers shall be produced, and when and where. Brett v. Brecknam, 32 Barb. 655.

Amendment to Sec. 420.–Passed April 27th, 1863.

[Takes effect sixty days after passage.] $ 120. If an adverse party refuse to attend and testify at the trial, or to give his deposition before trial, or upon a commission, when required, his complaint or answer 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.

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Sections 421, 422, and 423.Repealed April 27th, 1863.

{To take effect sixty days thereafter )

-vw auverse party may offer himw a witness on his own behalf in respect to such new matter, and shall be so received.

J. P.; N. Y. Code, ý 395.

1. Where a party is called as a witness by the other side, and, on his crossexamination, testities 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 defend. ant 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

testify as if a party. And a party may be examined on his own behalf on notice.

[1861.] A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner and subject to the same rules of examination as if he were named as a party. And a party to an action or proceeding may be examined as a witness in his own behalf, the same as any other witness; but such examination shall not be had, nor shall any other person for whose immediate benefit the same is prosecuted or defended be so examined, unless the adverse party or person in interest is living, nor when the opposite party shall be the assignee, administrator, executor or legal representative of a deceased person, nor unless ten days' notice of such intended examination of the party or person interested, specifying the points upon which such party or person is intended to be examined, shall be given in writing to the adverse party, except that in special proceedings of a summary nature, such reasonable notice of such intended examination shall be given as shall be prescribed by the Court or Judge. And when notice of such intended examination shall be given in an action or proceeding in which the opposite party shall reside out of the jurisdiction of the Court, such party may be examined by commission issued and executed as now provided by law; and whenever a party or person in interest has been examined under the provisions of this section, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received. When an assignor in a thing in action or contract is examined as a witness on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter in his own behalf, and shall be so received, and to any matter that will discharge him from any liability that the testimony of the assignor tends to render him liable for. But such assignor shall not be permitted to be examined on behalf of any person deriving title through or from him, against an assignee or an executor, or administrator, unless the other party to such contract or thing in action, whom the defendant or plaintiff represents, is living, and his testimony can be procured for such examination; nor at least ten days, notice of such intended examination of the assignor, specifying the points upon which he is intended to be

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examined, shall be given in writing to the adverse party. This
section shall not be held to impair or in any way affect the existing
provisions of law by which persons of Indian or negro blood are
excluded from being witnesses.
J. P.; N. Y. Code, j 396, 399.

Person is living," construction of.-A corporation is a person living,” within the provision of section three hundred and ninety-nine of the Code, allowing the conditional examination of a party, where the adverse party, or person in interest, is living. Wallace v. The Mayor, etc., of New York, 9 Abb. Pr. R. 40; Wright v. N. Y. Central R. R. Co., 28 Barb. 80.

2. The provision of section three hundred and ninety-nine of the Code-that a party shall not be examined as a witness, unless the adverse party or person in interest is living-does not exclude a party from being a witness when the opposite party is a corporation. Johnson v. McIntosh, 13 Barb. 367.

3.' Where one of two defendants dies, and the action goes on against the other without substitution of new parties, and it does not appear that the survivor is less cognizant of the facts as to which the plaintiff offers himself as a witness, it is not a case in which the adverse party or person in interest is not living; but the plaintiff is entitled to testify in his own behalf. Bigelow v. Mallory, 17 How. Pr. R. 427.

4. It makes no difference that the deceased party had indemnitied the one who is the survivor against the result of the litigation. Id.

5. A corporation is a living person within the meaning of the Code of 1857; and where it is a party to an action, the opposite party is entitled to be examined on his own behalf under the provisions of that Code. La Farga v. Exchange Fire Ins. Co., 22 N Y. (8 Smith) 352.

6. Whether the rule would apply when the officers are dead with whom the transactions were had concerning which the testimony is offered—Query. Id.

7. Representative of a deceased person, who is.-An executor under a will proved in another State, suing upon a note made to his order as executor, and indorsed by him in blank, is not the representative of a deceased person within section three hundred and ninety-nine of the Code, and the adverse party may be examined against him. Buckingham v. Andrews, 12 Abb. Pr. R.

8. In the provision of section three hundred and ninety-nine of the Code of Procedure, allowing parties to be examined as witnesses, except that parties shall not be examined against parties who are representatives of a deceased person and the witness, the words “ representatives of a deceased person” mean executors or administrators. McCray v. McCray, 12 Abb. Pr. R. 1.

9. A party whose interest in lands in suit is that of a guardian in socage, an heir or a dowress, is not a representative of the decedent through whom she claims, within the meaning of that section. Id.

10. When the wife may testify:-Section three hundred and ninetynine of the Code is sufficiently comprehensive to authorize the wife to be a witness in her own behalf, and the husband in his own behalf, whether they be coplaintiffs or codefendants, or whether the action be brought by one against the other. Shoe maker v. Mekee, 19 How. Pr. 86 ; disapproving of 36 Barb. 612; 15 How. Pr. 165, 196 ; but see amendment of ý 399, Laws of 1861, 787, ch. 459, $ 12.

11. In an action against husband and wife upon a debt of the husband, for which the wife's separate estate is liable collaterally, and where the object of the action is to enforce the demand against such separate estate, both having been served, and the action being at issue as against both, the wife may be examined in the method prescribed by sections three hundred and ninety and three hundred and ninety-one of the Code as a substitute for a bill of discovery. So far as she conld have been compelled to make discovery upon a bill properly framed before the Code, she can be required to answer now.' Draper v. Ilenningsen, 16 How. Pr. R. 281.

12. Landlord.It seems that under section three hundred and ninety-nine of

322.

the Code, a landlord is not a competent witness for himself in "summary proceedings to recover the possession of the land.” Marseilles v. Bulger, 19 How. Pr. 34.

13. The defendant was examined as a witness in his own behalf on the trial. At the time the trial was had, he could not, by law, testify in his own behalf without giving at least ten days' previous notice of his intended examination. The paper served, which was at the trial held to be a notice of his intended examination, was not signed by him or his attorney: Held, that such paper was not a notice. It was only a memorandum. [17 How. Pr. 192.) And the error in allowing him to testify in his own behalf, without any sufficient notice being given of his intended examination, entitled the plaintiff to a new trial. Dewitt v. Leonard, 19 How. Pr. 182.

14. Generally:-Cases in which a party cannot be examined as a witness in his own behalf. Code, $ 399, as amended 1859, Voorhies’ 6th ed. 532.

15. What is the proper practice in obtaining the examination of an adverse party in the various cases allowed by the Code, stated. Draper v. llenningsen, 1 Bosw. 611.

16. The rule that if a witness, with the fault of the party producing him, fail to answer, his testimony is to be stricken out, is applicable to the case of a party testifying in his own behalf. Burnett v. Phalon, 12 Abb. Pr. R. 186.

17. When a party was examined as a witness in his own behalf, before the amendment of section three hundred and ninety-nine of the Code, it was proper to recall him to contradict the other party, although not on a point specified in the notice. Rushmore v. Hall, 12 Abb. Pr. R. 420.

$ 423. Copartners, when parties, may be examined to prove items of account.

[1854.] Parties may be witnesses on their own behalf when the action is brought for the settlement of, or in relation to, the business and accounts of a copartnership then existing, or which had previously existed between them, to prove vouchers or items of account under one hundred dollars.

J.P.

1. A codefendant is not a competent witness, under section four hundred and twenty-three of the Practice Act, upon an issue where his testimony would enure to his own benefit. Sparks v. Kohler, 3 Cal. 300.

2. He would be a competent wituess to show that his codefendant was not his partner; for this, in a legal point of view, would be against his interest. Id.

CHAPTER IV.–On affidavit.

Sec. 424. Affidavits to be used in this State, before whom may

be taken in this State. 425. If made in another State of the United States, before

whom taken. 426. If made in a foreign country, before whom taken. 427. Certificate of Clerk, if taken before a Judge of a

Court out of this State.

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