§ 817. Where two or more 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. 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. 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 into one action.

§ 820. [am'd 1877.] 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 possession of the property, or its value, to such person as the court directs. The court may, in its discretion, make such an order.

§ 821. [am'd 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. [am'd 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 have been abolished. In a case where neither party can, as of right, require a trial 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. 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 to be deemed abandoned.

§ 825. 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. [am'd 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 an adjoining county, except where special provision is otherwise made by law.

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§ 827. [am'd 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 forty-six, 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.

CHAPTER IX.
EVIDENCE.

TITLE I.-General REGULATIONS RESPECTING EVIDENCE, AND THE COMPE.
TENCY AND MODE OF EXAMINATION OF A WITNESS.

TITLE II-COMPELLING THE ATTENDANCE AND TESTIMONY OF WITNESS.
TITLE III.-DEPOSITIONS.

TITLE IV.-DOCUMENTARY EVIDENCE,

TITLE V.-MISCELLANEOUS PROVISIONS.

TITLE I.

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.

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

829. When party, etc., cannot be ex

amined.

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 pro

fessional information.

§ 835. Attorneys and counsellors not to
disclose communications.
836. Application of the last three sec-

tions.

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.

§ 828. 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. [am'd 1877 & 1881.] 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 title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise; concerning a personal transaction or communication between the witness and the deceased person or lunatic; except where the executor, administrator, survivor, committee, or person so deriving title or interest 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.

§830. [am'd 1879.] Where a party has died since the trial of an action on the hearing upon the merits of a special proceeding, the testimony of the decedent, or of any person who is rendered incompetent by the provision 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.

a

§ 831. Lamd 1877, 1879, 1880, 1887.] 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 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 cannot, without the plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff.

§ 832. [am'd 1879.] A person, who nas 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.

§833. 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. 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. 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. [am'd 1877.] The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or the client.

§ 837. 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. The testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence.

§ 839. 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. [am'd 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.

§ 841. 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.

ARTICLE SECOND.

ADMINISTRATION OF AN

§ 842. Before whom oaths and affidavits

may be taken.

843. Id.; in special cases.

844. Id.; without the State.

845. General mode of swearing.

846. When kissing the gospels dispensed with.

OATH OR AFFIRMATION.

§ 847. When affirmation to be made.
848. Other modes of swearing.
849. Swearing persons not Christians.
850. Court may examine witnesses.
851. Swearing falsely in any form,
perjury.

842. An oath or affidavit, required or authorized by law; except an oath to a juror or a witness upon a trial, an oath of office, and an oath required by law to be taken before a particular officer; may be taken before a judge, clerk, deputy-clerk, or special deputy-clerk, of a court, a notary, public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the district in which the officer is author ized to act; and when certified by the officer, to have been taken before him, may be used in any court, or before any officer or other person.

§ 843. [am'd 1877.] Where an officer, person, board, or committee, has been heretofore, or is hereafter authorized by law, to take or hear testi mony, or to hear or receive an affidavit, or to take a deposition, in relation to a matter, concerning which he or it has a duty to perform, the officer or

person, or a member of the board or committee, may administer an oath, for that purpose. Where an officer, person, board or committee, to whom or to which application is made to do an act in an official capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose.

§ 844. [am'd 1877.] An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken, without the State, except where it is otherwise specially prescribed by law, before an officer authorized by the laws of the State, to take and certify the acknowledgment and proof of deeds, to be recorded in the State; and, when certified by him to have been taken before him, and accompanied with the like certificates, as to his official character and the genuineness of his signature, as are required to entitle a deed acknowledged before him to be recorded within the State, may be used, as if taken and certified in this State, by an officer authorized by law to take and certify the same.

§ 845. The usual mode of administering an oath, now practiced, by the person who swears laying his hand upon and kissing the gospels, must be observed, where an oath is administered, except as otherwise specially prescribed in this article.

§ 846. The oath must be administered in the following form, to a person who so desires, the laying of the hand upon and kissing the gospels being omitted: "You do swear, in the presence of the ever-living God. While so swearing, he may or may not hold up his hand, at his option.

§ 847. A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form: "You do solemnly, sincerely, and truly, declare and affirm."

§ 848. [am'd 1877.] If the court or officer, before which or whom a person is offered as a witness, is satisfied, that any peculiar mode of swearing, in lieu of, or in addition to laying the hand upon and kissing the gospels, is, in his opinion, more solemn and obligatory, the court or officer may, in its or his discretion, adopt that mode of swearing the witness.

$849. [am'd 1877.] A person believing in a religion, other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead or as prescribed in section eight hundred and forty-five or section eight hundred and forty-six of this act.

§ 850. The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness, to ascertain his capacity and the extent of his knowledge; and may inquire of a person, produced as a witness, what peculiar ceremonies in swearing he deems most obligatory.

§851. A person swearing, affirming or declaring, in any form, where an oath is authorized by law, is lawfully sworn, and is guilty of perjury, in a case where he would be guilty of the same crime, if he had sworn by laying his hand upon and kissing the gospels.