The reason this affiant believes that said O. K. would so testify is, that the said O. K. has so informed the said [defendant or plaintiff, for such other reason as induced the belief].

The affiant on the day of A. D., made inquiry at the place of last and usual abode of said O. K. for the purpose of summoning him to attend as a witness in this case, but found him sick and unable to leave his room or to give his deposition; that he veritably believes that the said O. K. is convalescent and will be able to attend court [or give his deposition so it can be had] · at the time to which this action may be continued.

The last clause must embody the facts showing what means have been taken to procure the attendance of the witness or his deposition.

CHAPTER XIII.

WITNESSES AND EVIDENCE.

1. The clerks of the several courts, and any justice of the peace, may issue summonses for witnesses to attend before courts, to give evidence concerning any matters there depending.1

2. No person shall be deemed an incompetent witness on account of his religious belief, but shall be subject to the test of credibility; and any person who does not believe in the existence of a Supreme Being, shall be permitted to testify under solemn affirmation, and shall be subject to all the pains and penalties of perjury.2

3. No person shall be excused or excluded from being a witness in any civil suit or proceeding at law, or in equity, by reason of his interest in the event thereof as party or otherwise, except as is hereinafter provided, but such interest may be shown for the purpose of affecting his credibility; and the husband or wife of either party may be a witness.3

(a) Parties being witnesses must testify subject to the same rules as other witnesses, unless restricted by the power by which they have been permitted to testify.*

1 R. S. c. 82, $ 80.-2 R. S. c. 82, § 81.-3 R. S. c. 82, § 82, as amended by o 137 Public Laws of 1873.-4 Wheelden v. Wilson, 44 Me. 11.

(b) The law requires all confidential communications, and whatever has come to the knowledge of either husband or wife by means of the confidence which the marriage relation inspires, as sacred, and not to be divulged in testimony after death, by the survivor. But in an action against the maker of a note by the executor of the last will and testament of the payee, the widow of the testator is a competent witness to testify to an agreement made in her presence by the defendant and her husband in his lifetime concerning the payment of the note, such fact not having come to her knowledge through any communication from her husband.5

(c) The word "witness" is a most general term, including all persons from whose lips testimony is extracted to be used in any judicial proceeding; and it embraces deponents and affiants equally with persons delivering oral testimony before a jury. Hence the provisions of the statute, c. 107, concerning depositions, are as applicable to a party as to any other witness."

(d) Telegraphic communications are not privileged, and a telegraphic operator is bound, as a witness, to disclose them.7

(e) The degree of credibility of any witness is to be determined by a jury (or trial justice).8

6

4. No defendant shall be compelled to testify in any suit when the cause of action implies an offense against the criminal law, on his part. If he offers himself as a witness, he waives his privilege of not criminating himself, but his testimony shall not be used in evidence against him in any criminal prosecution involving the same subject-matter."

5. Nothing in section eighty-two shall in any manner affect the law relating to the attestation of the execution of last wills and testaments, or of any other instrument, which by law is required to be attested.10

6. When a party to a suit resides without the State, or is absent from the State during the pendency of the suit, and the opposite party desires his testimony, a commission under the rules of court may issue to take his deposition; and such non-resident or absent party upon such notice to him or his attorney of record in the suit of the time and place appointed for the taking his deposition, as the court orders, shall appear and give his deposition. If he refuse or unreasonably delay to do so, he may be nonsuited or defaulted by order of court, unless his attorney

5 Walker v. Sanborn, 46 Me. 470.-6 Bliss v. Shuman, 47 Me. 248.- State v. Litchfield, 58 Me. 267.-8 State v. Litchfield, 58 Me. 267.-9 R. S. c. 82, § 83.10 R. S. c. 82, § 84.

will admit the affidavit of the party desiring his testimony as to what the absent party would say if present, to be used as testimony in the case."1

7. When one of the plaintiffs or defendants is used as a witness by the opposite party, testimony may be introduced by his co-plaintiffs or co-defendants to contradict or discredit him as if he was not a party to the suit.12

8. The provisions of the five preceding sections shall not be applied to any cases where, at the time of taking testimony, or the time of trial, the party prosecuting, or the party defending, or any one of them, is an executor or an administrator, or made a party as heir of a deceased party; except in the following cases:

First. The deposition of a party may be used at the trial, after his death, if the opposite party is then alive; and in that case the latter may also testify.

Second. In all cases in which an executor, administrator, or other legal representative of a deceased person is a party, such party may testify to any facts, legally admissible upon the general rules of evidence, happening before the death of such person; and when such party so testifies, the adverse party shall neither be excluded nor excused from testifying in reference to such facts, and any such representative party or heir of a deceased party may testify to any fact legally admissible upon general rules of evidence happening after the decease of the testator, intestate or ancestor; and in reference to such matters the adverse party may testify.

Third. If the representative party is nominal only, both parties may be examined as witnesses; if the adverse party is nominal only, and had parted with his interest, if any, during the lifetime of the representative party's testator or intestate, he shall not be excluded from testifying if called by either party; and in an action against an executor or administrator, if the plaintiff is nominal only, or, having had an interest, disposed of it in the lifetime of the defendant's testator or intestate, neither party to the record shall be excused or excluded from testifying. Fourth. In an action by or against an executor, administrator, or other legal representative of a deceased per

11 R. S. c. 82, § 85.-12 R. S. c. 82, § 86.

son, in which his account books or other memoranda are used as evidence on either side, the other party may testify in relation thereto.13

(f) In a suit by an administrator of an estate, one interested therein as an heir is competent.14

(g) The heirs of a testator, who contest the probate of his will, are not excluded as "heirs of a deceased party." 15

(h) A person named as executor in a will is not really and legally such until the will is proved and he has given bond, and in a contest as to its execution he is not a "party prosecuting" or "party defending." 16

(i) The provisions of section eighty-seven include executors on the estate of one in prison under sentence of death.17

(j) An executor, who sues as such, on a debt claimed to be due to the estate, cannot be deemed a "nominal party," unless it appears that his testator or he as executor had or has no interest in the claim, but the interest is in another in whose name the action might have been brought or defended.1ia

(k) The defendant cannot introduce the testimony of the plaintiff's intestate as given at a previous trial of the action, and then testify as a witness to contradict it.18 A paper containing a part of the items of account annexed to the writ shown to a witness called by an administrator solely to refresh his memory, is not so "used as evidence" as to authorize "the other party to testify in relation thereto." 18 "Other memoranda" means memoranda made by the deceased only. 186

(kk) In an action by a married woman against an administrator, the plaintiff's husband cannot testify to facts happening before the intestate's decease, unless the defendant has testified or offered to testify."

18a

9. The rules of evidence which apply to actions by or against executors or administrators shall be applied in actions where a person, shown to the court to be insane, is solely interested as a party.19

10. The rules of evidence in special proceedings of a civil nature, such as before referees, auditors, county commissioners, courts of probate, shall be the same as herein provided for civil actions.20

(kelek) In a common-law submission silent as to the rules of evidence that shall govern the referees they may receive the statements of parties without requiring them to be first sworn. 20ɑ

13 R. S. c. 82, § 87, as amended by c. 145, Public Laws of 1873; see also Kelton V. Hit, 59 Me. 259-14 Gunnison v. Lane, 45 Me. 165.-15 Nash v. Reed, 46 Me. 168.16 Millay v. Wiley, 46 Me. 230; McKeen v. Frost, ibid., 239.-17 Knight v. Brown, 47 Me. 468.-17a Drew v. Roberts, 48 Me. 35.-18 Folsom v. Chapman, 59 Me. 194.-18 Jones v. Simpson, 59 Me. 180.-18b Cary v. Herrin, 59 Me. 361.19 R. S. c. 82, § 88.-20 R. S. c. 82, § 89.2a Sanborn v. Paul, 60 Me. 325.

11. When a person, duly summoned and obliged to attend before any judicial tribunal, fails to do so without a reasonable excuse, he shall be liable to the party aggrieved, for all damages sustained thereby. The judge of such tribunal may issue a capias to apprehend and bring him before him; and he may be fined not exceeding twenty dollars and the costs of the attachment, and committed until the same and the costs of commitment are paid.21

12. When a witness in court refuses to answer such questions as the court allows to be put, he may be fined not exceeding twenty dollars, and committed until the fine and costs of commitment are paid.22

13. A person to whom an oath is administered shall hold up his hand, unless he believes that an oath administered in that form is not binding, and then it may be administered in a form believed by him to be binding. One not believing in the Christian religion may be sworn according to the ceremonies of his religion.23

14. Persons conscientiously scrupulous of taking an oath may make an affirmation as follows: "I do affirm, under the pains and penalties of perjury," which shall be deemed of the same force and effect as an oath.24

15. No person shall be incompetent to testify in any court or legal proceeding, in consequence of having been convicted of a criminal offense; but such conviction may be shown to affect his credibility.25

(1) Hence the deposition of a person, taken while he is under the sentence of death, having been convicted of murder, is competent evidence.26

16. No person is obliged to attend in any court as a witness in a civil suit, or at any place to have his deposition taken, unless his legal fees for travel to and from the place and for one day's attendance, are first paid or tendered; and his fees for each subsequent day's attendance must be paid at the close of the preceding day, when he requests it.27

FEES OF A WITNESS.

17. Witnesses in the supreme judicial court shall receive a dollar and fifty cents, and in the probate court, or

21 R. S. c. 82, $ 90.-22 R. S. c. 82, § 91.-23 R. S. c. 82, § 92.-24 R. S. c. 82, § 93.-25R. S. c. 82, § 94.-26 Woodman v. Churchill, 51 Me. 112.-27 R: S. c. 82, § 95.