JUSTICE'S Presumption cases. an action is brought upon a sealed instrument, or where a set-off is founded upon such an instrument. It was held, in Calkins v. Long, 22 Barb., 97, that it does not apply to an action brought by a mortgagor, to compel the cancelling of a mortgage made without consideration. There are many other cases, where a sealed instrument may be made the foundation of a claim or defence, to which it would not apply; and justice seems to require that its policy should be extended. The only cases, where a seal should be conclusive, are saved by the word, "executory ", in this section, such as releases.] § 841. A person, upon whose life an estate in real property deof detain pends, 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. [1 R. S., 749, Part 2, ch. 1, tit. 5, § 6 (3 R. S., 5th ed., 39; 1 Edm., 700), amended by substituting the words, "without the United States," for "beyond sea," as the effect of the latter expression is totally different in this country, from that which obtains where it had its origin. See McCartee v. Camel, 1 Barb. Ch. R., 455.] Before whom oaths and affidavits may be taken. ARTICLE SECOND. ADMINISTRATION OF AN OATH OR AFFIRMATION. § 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 authorized 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. [2 R. S., 284, Part 3, ch. 3, tit. 2, § 49 (3 R. S., 5th ed., 474; 2 Edm., 294), amended by striking out "any circuit judge, supreme court commissioner ", and the clause, authorizing the justices of the supreme court to appoint commissioners, and by adding judges, clerks and deputy-clerks of courts not of record, and the officers enumerated between the word, "court ", and the words, "commissioner of deeds". These officers have been authorized, by various statutes, to administer oaths, except mayors, surrogates' clerks, deputy county clerks, and (in some instances) deputy-clerks of courts of record. L. 1863, ch. 508, §2 (6 Edm., 169); L. 1840, ch. 238, § 1 (3 Edm.. 302): L. 1851, ch. 175, § 1 (1 R. S., 5th ed., 388; 4 Edm., 509).] PART IL special $843. [Amended, 1877.] Where an officer, person, board, or com- Id : in mittee, has been heretofore, or is hereafter authorized by law, to cases. take or hear testimony, 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. [The first sentence is a general provision, intended to embrace numerous special provisions, concerning administrative officers, committees, boards, etc. The second sentence has been taken from 2 R. S., 552, Part 3, ch. 8, tit. 17, § 11 (3 R. S., 5th ed., 866; 2 Edm., 573).] out the § 844. An oath or affidavit required, or which may be received, Id.; within an action, special proceeding, or other matter, may be taken, with- State. out 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. [New. By various statutes, nearly every person, authorized to take acknowledgments without the State, is authorized to administer oaths. There are, however, some exceptions; and the two cases present some discrepancies, as to the manner of certifying the official character of the officer. It is preferable that any officer, authorized to take acknowledgments, should be empowered to administer oaths, and that his acts should be authenticated in the same manner, in both cases. 2 R. S., 396, Part 3, ch. 7, tit. 3, § 25 (3 R. S., 5th ed., 677; 2 Edm., 412); L. 1854, ch. 206 (4 Edm., 650); L. 1863, ch. 246, § 3 (6 Edm., 98); L. 1865, ch. 421 (6 Edm., 482); L. 1870, ch. 208 (7 Edm., 672); L. 1869, ch. 133 (7 Edm., 425); L. 1850, ch. 270 (4 Edm., 441); L. 1858, ch. 259 (4 Edm., 444); L. 1848, ch. 195 (4 Edm., 440); L. 1845, ch. 109 (4 Edm., 437); L. 1829, ch. 222 (4 Edm., 434); L. 1867, ch. JUSTICE'S MANUAL 557 (7 Edm., 129); L. 1875, ch. 136. The act, L. 1862, ch. 471 (4 Edm., 647), providing for the administration of oaths to volunteers in the service of the United States, has been omitted, as temporary.] Swearing persons not 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. [2 R. S., 407, Part 3, ch. 7, tit. 3, § 82 (3 R. S., 5th ed., 692; 2 Edm., 424).] 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. [Id., § 83.] § 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.” [Id., § 84.] § 848. [Amended, 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. [Id., § 85.] § 849. A person believing in a religion, other than the Christian, Christians. may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section 845 or section 846 of this act. Court may examine witness. [Id., § 86.] 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. [Id., § 89, amended so as to disconnect it from id., §§ 87 and 88, which relate to the belief of a witness in a Supreme Being, and have been omitted, as having been rendered obsolete by article 1, § 3, of the constitution of 1846. Stanbro v. Hopkins, 28 Barb., 265. This provision has been retained, because its omission might be regarded as an argument against the right of the court, to make the inquiries therein referred to.] PART II. falsely in perjury. 851. A person swearing, affirming, or declaring, in any form, Swearing where an oath is authorized by law, is lawfully sworn, and is guilty any form 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. [Id., the latter clause of § 90, extended so as to make its provisions more comprehensive, and to obviate questions which may arise, either in the action, or upon an indictment for perjury, whether the witness was duly sworn, if the directions of the statute have not been strictly followed; as, for instance, where a book, not containing the gospels, was used.] TITLE II. Compelling the attendance and testimony of a witness. exempt from 860. A person duly and in good faith subpoenaed or ordered Witness to attend, for the purpose of being examined, in a case where his arrest. attendance may lawfully be enforced by attachment, or by commitment, is privileged from arrest in a civil action or special proceeding, while going to, remaining at, and returning from, the place where he is required to attend. [Id., § 51. A foreign witness thus attending cannot be served with a summons. Person v. Grier, 66 N. Y., 124.] to be dis charged from arrest. § 861. The court, from which a subpoena, served in good faith, When to was issued, or by which an order was made, requiring a person attend, for the purpose of being examined; or a judge thereof, upon proof, by affidavit, of the facts, must make an order, directing the discharge of a witness or other person, from an arrest made in viola tion of the last section. [Id., § 52, amended by extending the power to a judge, whether the court is or is not in session.] JUSTICE'S By whom Arrest, when void; penalty. Sheriff not to be liable, unless affidavit is made. Applica tion of foregoing provisions to judg ments. § 862. A justice of the supreme court, in any part of the State, or a county judge, or a judge of a superior city court, within his district, has the like authority as a judge of the court, to make an order for a discharge, in a case specified in the last section. Upon satisfactory proof, by affidavit, of the facts, he must also make an order, directing the discharge of a person arrested, in violation of section eight hundred and sixty of this act, where a subpoena, served in good faith upon the person arrested, was issued as prescribed in section eight hundred and fifty-four of this act. [The first sentence has been taken from id., § 53. The second is new.] § 863. An arrest, made contrary to the foregoing provisions of this title, is absolutely void, and is a contempt of the court, if any, from which the subpoena was issued, or by which the witness was directed to attend. An action may be maintained, by the person arrested, against the officer or other person making such † arrest, in which the plaintiff is entitled to recover treble damages. A similar action may also be maintained, in a like case, by the party in whose behalf the witness was subpoenaed, or the order procured, to recover the damages sustained by him, in consequence of the arrest. [Id., § 54.] § 864. [Amended, 1877.] But a sheriff or other officer, or person, is not so liable, unless the person claiming an exemption from arrest, makes, if required by the sheriff or officer, an affidavit, to the effect that he was legally subpoenaed or ordered to attend, and that he was not so subpoenaed or ordered by his own' procurement, with the intent of avoiding arrest. In his affidavit, he must specify the court or officer, the place of attendance, and the cause in which he was so subpoenaed or ordered. The affidavit may be taken before the officer arresting him, and exonerates the officer from liability for not making the arrest. [Id., § 55.] 865. The foregoing provisions of this title, relating to a person required, by an order of a court, to attend, apply, where such an attendance is required by the terms of a judgment. The word "an" omitted by an error in engrossing. |