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CHAPTER III.

OF THE EXAMINATION OF PARTIES TO AN ACTION OR PROCEEDING, AND OF PERSONS FOR WHOSE IMMEDIATE BENEFIT SUCH

ACTION OR PROCEEDING IS PROSECUTED

OR DEFENDED.

417. 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.

1. 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; Quick v. Keeler, ib., 231.

418. 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.

1. A co-defendant is not a competent witness, where his testimony would enure to his own benefit. He could show his co-defendant was not his partner.-Hotaling v. Cronise, 2 Cal., 60; Beach v. Covillaud, ib., 237; Sparks v. Kohler, 3 Cal., 299; Johnson v. Henderson, ib., 368; Buckley v. Manife, ib., 441; Lucas v. Payne, 7 Cal., Jan. T. When not served with process in an action of trespass, he is still incompetent.Gates v. Nash, 6 Cal., 192.

2.

3. The examination of a defendant not served with process, as a witness, will not authorize the examination of a plaintiff as a witness on behalf of himself and his coplaintiffs.-Robinson v. Frost, 14 Barb., 536.

4. This does not authorize the examination of a party except as a witness at the trial of an issue in the action, or upon commission, his testimony to be read on the trial. On a motion, e. g., to vacate an order of arrest, this order to examine should not be granted.-Huelin v. Ridner, 6 Abbott, 19.

5. Where the plaintiff is called by defendant, his testimony in a former suit, directly contrary to his present evidence, may be given as an admission, on the trial.-Pickard v. Collins, 23 Barb., 444.

6. In an action for a tort against two or more defendants, each defendant is a competent witness for his co-defendant.

7. As to what matters upon which he may give evidence, discussed.-Beal v. Finch, 1 Kern, 128.

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Under the code a defendant cannot be examined by a co-defendant to establish usury as a defense to their joint promissory note.-Ely v. Miller, 1 Abbott, 241.

8.

9. A party to a suit who is made a witness by statute, is to become such under the same requisitions and restrictions as any other witness.-Arnold v. Arnold, 13 Verm., 370. 10. The declarations and conduct of the seller and buyer are competent testimony to show fraudulent intent.-Landecker v. Houghtaling, 7 Cal., April T.; Visher v. Webster, ib., July T.

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

420. 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.

421. 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.

1. The party so offering to be a witness for himself, must only explain the new matter, and no more.-Dwinelle v. Henriquez, 1 Cal., 387.

2. When a party testifies that he executed a promissory note described, he charges himself and may show that he has since paid the note.-Jones v. Love, 8 Cal., Jan. T.

3. Where a party called, testifies to independent matter in his own behalf, the court is not bound to believe him and decide according to his testimony.-Roberts v. Gee, 15 Barb., 449.

4. Where a plaintiff calls the defendant as a witness to prove the plaintiff's claim, and the defendant on a cross-examination in his own behalf proves a counter claim as set up in his answer, the plaintiff may be examined in reference to the evidence given by the defendant, on the subject of the counter claim.-Harpell v. Irwin, 1 Abbott, 144.

5. The defendant was examined by the plaintiff on the trial; after which being examined upon his own behalf, he testified to a counter claim that existed previous to the indebtedness upon which the action was brought, and the plaintiff was properly admitted to testify as to the new matter.—Anonymous, 3 Abbott, 102.

422. A person for whose immediate benefit the action is prosecuted

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