§ 815. Bonds, etc., not affected by change of parties. A bond or undertaking given in an action or special proceeding, as prescribed in this act, continues in force, after the substitution of a new party in place of an original party, or any other change of parties; and has thereafter the same force and effect, as if then given anew, in conformity to the change of parties.

§ 816. Id.; to be filed. A bond or undertaking, required to be given by this act, must be filed with the clerk of the court; except where in a special case, a different disposition thereof is directed by the court, or prescribed in this act.

ARTICLE SIXTH.

OTHER MATTERS.

SECTION 817. Consolidating causes in same court.

818. Id.; in different courts.

819. Id.; by plaintiff.

820. Interpleader by order in certain cases.

821. Dismissal of complaint for neglect to serve summons.

822. Id.; for neglect to proceed.

823. Feigned issues abolished and order for trial substituted.

824. Summons and pleadings to be tiled within ten days after service.

825. Papers in special proceedings; where to be filed.

826. Publication, when no newspaper, etc., in county.

827. Special references in certain cases.

Where two or more

§ 817. Consolidating causes in same court. actions in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending in the same court, the court may, in its discretion, by order, consolidate any or all of them, into one action. § 818. Id.; in different courts. Where one of the actions is pending in the supreme court, and another is pending in another court, the supreme court may, by order, remove to itself the action in the other court, and consolidate it with that in the supreme court.

§ 819. Id.; by plaintiff. Where separate actions are commenced against two or more joint and several debtors, in the same court, and for the same cause of action, the plaintiff may, in any stage of the proceedings, consolidate them in one action.

820. Interpleader by order in certain cases. A defendant against whom an action to recover upon a contract, or an action of ejectment, or an action to recover a chattel, is pending, may, at any time before answer, upon proof, by affidavit, that a person, not a party to the action, makes a demand against him for the same debt or property, without collusion with him, apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering the possession of the property, or its value, to such person as the court directs; or upon it appearing that the defendant disputes, in whole or in part, the liability as asserted against him by different claimants, or that he has some interest in the subject-matter of the controversy which he desires to assert, his application may be for an order joining the other claimant or claimants as co-defendants with him in the action. The court may, in its discretion, make such order, upon such terms as to costs and payments into court of the amount of the debt, or part thereof, or delivery of the possession of the property, or its value or part thereof, as may be just, and thereupon the entire controversy may be determined in the action. [AM'D BY CH. 246, OF 1894. Took effect April 24, 1894.]

§ 821. Dismissal of complaint for neglect to serve summons. [AMENDED BY CH. 416 OF 1877.] Where, in an action against two or more defendants, the plaintiff unreasonably neglects to serve the summons upon one or more of them, without whose presence a complete determination of

the controversy cannot be had, the court may, in its discretion, upon the application of a defendant who has appeared in the action, dismiss the complaint as against him, and render judgment accordingly.

§ 822. Id.; for neglect to proceed. [AMENDED BY CH. 542 OF 1879.] Where the plaintiff unreasonably neglects to proceed in the action against the defendant, or one or more defendants against whom a separate judgment may be taken, the court may, in its discretion, upon the application of the defendant or defendants, or any of them, against whom he so neglects to proceed, dismiss the complaint as against the moving party or parties, and render judgment accordingly.

§ 823. Feigned issues abolished, and order for trial substituted. Feigned issues have been abolished. In a case, where neither party can, as of right, require a tria! by jury of an issue of fact arising upon the pleadings, or where a question of fact, not in issue upon the pleadings, is to be tried, an order for the trial thereof by a jury may be made, stating, distinctly and plainly, the questions of fact to be tried. Such an order is the only authority necessary for the trial.

§ 824. Summons and pleadings, to be filed within ten days after service. The summons, and each pleading in an action, must be filed with the clerk, by the party in whose behalf it is served, within ten days after the service thereof. If the party fails so to file it, the adverse party, on proof of the failure, is entitled without notice, to an order from a judge, that it be filed within a time specified in the order, or be deemed abandoned.

§ 825. Papers in special proceedings, where to be filed. A return or other paper in a special proceeding, where no other disposition thereof is prescribed by law, must be filed, and an order therein must be entered, with the clerk of the county in which the special proceeding is taken, if it is before a county officer, or a judge of a court established in a city; if before a justice of the supreme court, with the clerk of a county designated by the justice; or, if no designation is made by him, of a county where one of the parties resides.

§ 826. Publication, where no newspaper in county. [AMENDED BY CH. 416 of 1877.] Where a notice, or other proceeding is required by law to be published in a newspaper published in a county, and no newspaper is published therein, or to be published oftener than any newspaper is regularly published therein, the publication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by law.

§ 827. Special references in certain cases. [AMENDED by CH. 416 OF 1877.] Where a provision of this act authorizes the court to approve an undertaking or the sureties thereto; or to make an examination or inquiry; or to appoint an appraiser, receiver or trustee; it may direct a reference, to one or more persons designated in the order, either to make the approval, examination, inquiry or appointment, or to report the facts to the court, for its action thereupon. And where, according to the practice of the court of chancery, on the thirty-first day of December, eighteen hundred and fortysix, a matter was referable to the clerk, or to a master in chancery, a court having authority to act thereupon, may direct a reference to one or more persons, designated in the order, with the powers which were possessed by the clerk, or the master in chancery, except where it is otherwise specially prescribed by law.

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CHAPTER IX.

EVIDENCE.

TITLE I.-GENERAL REGULATIONS RESPECTING EVIDENCE, AND THE COM

PETENCY AND MODE OF EXAMINATION OF A WITNESS.

TITLE II.-COMPELLING THE ATTENDANCE AND TESTIMONY OF WITNESSES.

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 of affirmation.

ARTICLE FIRST.

COMPETENCY OF A WITNESS; EVIDENCE IN PARTICULAR CASES.

SECTION 828. No witness to be excluded by reason of interest, etc.

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829. When party, etc., cannot be examined.

*830. Id.; husband or wife of party, etc.

831. When husband and wife not competent witnesses.

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.

835. 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.
$39. Admission by member of corporation.

840. Seal, presumptive evidence of consideration.
841. Presumption of death in certain cases.

§ 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.

§ 829. When party, etc., cannot be examined. [AMENDED BY CH. 416 OF 1877.] Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person interested in the event, or a person

Stricken out.

§ 830-836.

COMPETENCY OF WITNESSES.

Tit. 1. Ch. G from, through or under whom such a party or interested person derives his îñterest 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 title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication ketween the witness and the deceased person or lunatic, except where the exe cutor, administrator, survivor, committee or person so deriving title or inter est, is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication. A person shall not be deemed interested for the purposes of this section, by reason of being a stockholder or officer of any banking corporation which is a party to the action. or proceeding or interested in the event thereof. [AM'D CH. 703 of 1881.]

$830. Evidence of decedent, when it may be read. Where a party has died since the trial of an action, or the hearing upon the merits of a special proceeding, the testimony of the decedent, or of any person who 13 rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing by either party, subject to any other legal objection to the competency of the witness, or to any legal objection to his testimony or any question put to him. The testimony of any witness who has died or become insane after a former trial or hearing of a contested proceeding, a special proceeding or an action, may be read upon a subsequent trial or hearing, by any party to such action or proceeding, subject to legal objection. [AM'D BY CH. 595 OF 1893.]

$831. When husband and wife not competent witnesses. Id.; when competent. [AMENDED BY CH. 416 OF 1877; BY CH. 542 OF 1879, AND BY CH. 149 OF 1880.] 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. A husband or wife shall not be compelled, or without the consent of the other if living, allowed to disclose a confidential communication made by one to the other during 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 connot, without the plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff. [AM'D CH. 103 OF 1887.]

§ 832. Conviction for crime not to exclude witness; how conviction proved. [AMENDED BY CH. 542 OF 1879.] 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 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.

§ 883. 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.

§ 834. Physicians not to disclose professional information. A person duly authorized to practice physic or surgery, 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.

§ 835. 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.

$836. 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 may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is diseased, which he acquired in attending such patients professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examina

tion 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 o 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 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 upon the trial of the action. In such case a copy of the order shall be served, together with the subpoena. Sections eight hundred and seventy-two, eight hundred and seventy-three, eight hundred and seventy-four, eight hundred and seventy-five, eight hundred and seventy-six, eight hundred and seventy-nine, eight hundred and eighty, eight hundred and eighty-four and eight hundred and eighty-six of this code apply to the examination of a physician or surgeon as prescribed in this section. [AM'D BY CH. 295 OF 1893.]

§ 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.

§ 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.

§ 839. 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.

§ 840. Seal, presumptive evidence of consideration. [AMENDED PY CH. 416 OF 1877.] 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.

8841. 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 twentyfive 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. [Aм'D CH. 364 OF 1891; in effect May 12, 1891.]

ARTICLE SECOND.

ADMINISTRATION OF AN OATH OR AFFIRMATION.

SECTION 842. Before whom oaths and affidavits may be taken.

843. Id.; in special cases.

844. Id.; without the State.

יך

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