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which is favorable to him, the witness can not be contradicted by showing

'iously admitted the existence of the latter fact. 2 Met., 24; 80 A3'., 511.

»i]. Impeachment of witness by adverse party. — A witness

ached by the party against whom he is produced, by con- , /1p ' ,

idence (a), by showing that he has made statements dif- J}

his present testimony (b), or by evidence that his general // ^» • ^r

>r untruthfulness or immorality renders him unworthy of

t not by evidence of particular wrongful acts (d), except

e shown by the examination of a witness, or record of a

at he has been convicted of felony.

of exceptions taken on a former trial may be used to contradict a witness.

may be discredited by disproving circumstances detailed by him, as well
the principal point of his evidence. I Bibb, 125.

y may, by cross-examination, compel a witness "to disclose his interest in
his motives and prejudices, with the view of enabling the jury to place a
on his testimony." 81 Ky., 483.

may allow a witness to be recalled and cross-examined, with the view of
ion for contradicting his testimony. Scott v. Commonwealth, 4 Met., 231.
examination of a witness as to collateral and irrelevant matters, for the
radicting him [or for any other purpose], should not be permitted ; and,
tould answer such questions, contradictory evidence would not be ad-
M., 545; 14 Bush, 357; 13 Id., 456; 80 Ay., 511; 81 Id., 483; 82

trmatt v. Virgin & wife, 18 B. M., 792, the court said : "The extent of the
e on the examination in chief is as to the general character of the witness,
bad. His or her general character for truth and veracity, and whether
on oath."

nder the old practice that a party had not only the right to prove that an

*as a man of general bad character as a man of truth, whether under oath

May, 3 Dana, 79) but a right to prove that he was a man of general bad



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GENERAL RULES OF EXAMINATION. 415



563]. Evidence of good character of witness. — Evidence of the
icter of a witness is inadmissible,, until his general reputation
npeached.

ce of the good character of a witness is not admissible where he is only
proof of his having made a different statement on another occasion, or by
\ which contradict those stated by him in his testimony. 2 Met, 583.
>sition taken to impeach the credit of a witness can not be read by the
, if the party taking it decline to read it, and fail to assail the character of
itended to be impeached by it. If the character of the witness had been
e party taking the deposition, and he had declined to read it, the adverse
have had the right to do so for the purpose of sustaining his witness. 8

564]. Re-examination of witness, — A witness once examined

1 re-examined as to the same matter without leave of the

it he may be re-examined as to any new matter upon which

1 examined by the adverse party. After the examination on

is concluded, the witness can not be recalled without leave

rt.

565]. Separating witnesses. — If either party require it, the fl()R 17'

r exclude from the court-room any witness of the adverse

t the time under examination, so that he may not hear the

of the other witnesses (a). [But this rule shall not apply to

to the action or the officers of the court. Act May 7, 1886].

r as held to apply to a motion to disbar an attorney (8 Bush, 96), and to trials
Ky. % 432) ; but it is not mandatory, but leaves the question of exclusion to
iscretion of the court. 82 A>., 87, 88.

166]. Persons present may be compelled to testify. — A person

fore a court or before a judicial officer may be compelled to

le same manner as if he were served with a subpoena.

'&j\ Calling judge or juror as witness. — The judge or a juror

led as a witness ; but, in such case, it is in the discretion of

3 suspend the trial and order it to take place before another

ury; and, if a party know, when the jury are sworn, that a

be called by him as a witness, he shall then disclose it, and

mil be excluded from the jury.

i68]. Proof writing by witness. — A writing shown to a witness

pected by the adverse party, and, if proved by the witness, fa Q] t c ,

read to the jury before his testimony is closed ; otherwise, it

read, unless the witness be recalled.

(writing proved by comparison, see Act of 1886, appended to \ 221 of Crim-

27

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4l6 EVIDENCE. t T1 -



PART II.
COMPEtEN'CY OF WITNESSES.*

§ 605 Competency of witnesses generally.
§ 606-1. husband and wife.

2. party, against infant under 14.

2, 6. person of unsound mind.

2, 6. decedents.

3» defendant constructively summoned.

4. Party can not testify after taking testimony.

5. Attorneys and priests, as to communications and confessions.

7. Testimony of party as to entries on account-books.

8. Prisoners incompetent : nor can party testify against.

9. Assignors, when incompetent.
10. Party, how compelled to testify.

• 11. Competency of attesting witnesses; and of parties, to make certain a

not affected by this section.
\ 607. Other objections go to credibility.

\ 608. Interrogator's testimony as tD new matter in equitable actions.
% 609. ordinary actions.

§ 605 [669]. Competency of witnesses generally. — Subject to t
' ceptions and modifications contained in § 606, every person is
petent to testify for himself or another (#), unless he be found
court incapable of understanding the facts concerning which r
timony is offered (b).

(a) The Code dispenses with religion as a test of competency in civil cases,
Constitution dispenses with it as a test in criminal cases. Bush v. The Commonw
Ky., 244.

(d) A witness may be competent to prove what a deceased witness stated on 1
trial, though unable to state his precise words — an exactness which ought to excite
as to his honesty. It is sufficient, "if the witness is able to state the substance of
was sworn in the former trial" (17 B. Af. 9 623-24), "in reference to the material
in issue." 80 Ay., 247.

" When a witness states that he remembers the substance of all the deceased
testified to, both on the direct and the cross-examination, he is a competent witne
when the evidence is heard, if it does not appear that the witness does not remen
substance of all that the deceased person testified to, the evidence should be pern
go to the jury; but, if it be manifest to the court that the witness does not so rei
the evidence should be rejected. . . . Apparent or actual contradictions in
timony of witnesses who purport to relate the .substance of the evidence given
ceased witness go not to the admissibility of the testimony, but only to its weight ,
jury." 80 A>., 246-47.

And see 10 Bush, 16, 17, as to proof of confessions or conversations.

^For legislation on this subject which this Code seems to have superseded by repeal or re-ei
■ee \\ 669 to 675 of the Code of 1854, and an act of January 30, 1872, which was re-enacted in \
chapter 37, of the General Statutes.

For cases which arose under that act and those sections of the General Statutes (and whic
me to have no bearing on cases arising under this Code), see Booth's ex' r v. Vanarsdale,^ £
Manioris adm'r v. Manion's adm'x, 10 A£, 295 ; Wilson, guardian, v. Unselts adm'r, 12 /<£, 21;
v. Hunter, cVc, 13 Id., 163 ; Caves' devisees v. Caves' heirs, Id., 452 ; Wor.hley's adm'r v. Nam*
510; Allen, 6fc, v. Russell, &*c, 78 Ay., 105.



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COMPETENCY* OF WITNESSES 417



70]. Competency of husband and wife. — [i. Neither a husband

t shall testify, while the marriage exists or afterwards, con-

y communication between them during marriage (a). Nor

of them testify against the other (&). Nor shall cither of them

;he other, except in an action for lost baggage or its value c?S W 4

:ommon carrier, an innkeeper, or a wrongdoer, and in such £/ Oi.kJ

tr or both of them may testify ; and, except in actions which

i been brought by or against the wife, if she had been un-

d in such actions either, but not both, of them may testify(f).

t that when a husband or a wife is acting as agent for his or

, either of them may testify as to any matter connected with

»ncy.

ietency of witness against decedents, &c. — Subject to the pro-

iubsection seven of this section, no person shall testify for - ^"*'**

concerning any verbal statement of, or any transaction with, £/ (ft. ?. t

done or omitted to be done by, an infant under fourteen
e, or by one who is of unsound mind or dead when the testi-
;red to be given (e) f except for the purpose and to the extent

one who is living, and who, when over fourteen years of
;ound mind, heard such statement, or was present when such
took place, or when such act was done or omitted, unless :
nfant or his guardian shall have testified against such person,
ice to such statement, transaction, or act ; or,

the person of unsound mind shall, when of sound mind,
*d against such person with reference thereto ; or,
lecedent, or a representative of, or some one interested in
shall have testified against such person with reference there-
gent of the decedent or person of unsound mind, with ref-
ach act or transaction, shall have testified against such per-
?ference thereto (g), or be living when such person offers to

reference thereto.
' can not testify after taking testimony. — No person shall testify

in chief, in an ordinary action, after introducing other testi-
imself, in chief; nor, in an equitable action, after taking other
or himself, in chief.

mony of attorneys and priests as to communications and confes-
attorney shall testify concerning a communication made to

professional character by his client, or his advice thereon,
\ client's consent (A) ; nor shall a clergyman or priest testify

any confession made to him in his professional character in



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COMPETENCY OF WITNESESS 4I9

sisting the probate of the will, but the defeat of the motion to probate will
advantage, and her husband can not be called to testify against her interest"
U -

e wife caa elect which of them shall testify. 9 Bush, 719; 81 JCy. t 13.
action by a husband's creditors to set aside a conveyance to his wife which it

fraudulent, he can testify for her. 87 Ay., 55.

ion by husband and wife for an injury to real property owned by them jointly,
>t testify against the defendant. 14 Ky. L. Rep,, 145.
te fact that the witness is not a party to the action is immaterial : in an action
igainst an administrator, a beneficiary is incompetent to testify for the plaintiff
iction between a former trustee and the defendant's intestate. 86 Ky. % 223.
>es the mere fact that the witness is a party to the action make him incompe-
n an action by an executor against a principal and his surety, the surety,
a judgment had been rendered by default, was held to be a competent witness
' the principal's plea of usury. 79 Ky. y 131.

1 action by an administrator against co-partners, one of them can not, by
gment to go against him, make himself a competent witness for others in
eir plea of payment to the intestate. 85 Ky. % 320

action by A's executor against B, as principal, and against said B and C,
D, who was surety in the note sued on, B made no defence, but C pleaded
ntiflfs intestate had discharged D from liability by giving indulgence to B;
jld that B was not a competent witness to prove that fact. 79 Ky,, 61.
, partners, executed their note to D, a guardian, payable to him in hisindi-

D having becOme insolvent, the surety in his fiducial bond paid his debt to
1 sued A, the survivor of the firm of A & B, for the amount of said note,
it was for money of the ward lent by D ; and A pleaded, as a set-off, a debt
o the firm of A & B; and it was held that D was incompetent to prove that
through the deceased partner who borrowed the money, that it was the money
ind borrowed it as such. Alexander's ex y rs v. Alford, &V., 12 Jty. Z. /?., 363.
other of a bastard is a competent witness to prove a contract made by the
er for the support of the child, though the father be dead. 83 A}'., 544.
the competency of heirs and devisees concerning the execution of a will,
of the testator, and his subjection to undue influence, see cases cited and
sreon, in the note to } 13, chapter 113, of Bullitt & Feland's General Statutes

887).

ords " offered to be given" refer, as to depositions, not to the time of taking
the time when it is proposed to read them. 78 A}., 595-96.
t action against executors to set aside a deed alleged to have been obtained
ntiff by the fraud and undue influence of their testator, it was held that, the
iving testified to facts from which, if left unexplained, it'must necessarily be
the plaintiff executed the deed freely, voluntarily, and with full knowledge
ts, purpose, and effect; the plaintiff was competent "to testify concerning
isaction, and in connection therewith to state she executed the deed because
stator] requested her to do so, and did not understand or attempt to under*
tuse she had confidence in him, and believed he would ask her to do only what

85 A>., 345-

fact that the agent of a decedent had testified at a former trial does not make
arty competent to testify at another trial, the agent having died. 80 Ky., 453,
ill other cases an attorney is a competent witness for or against his client,
should or should not testify while the relation subsists is a question of profes*
ety, which he alone is to determine for himself and with which the court hat
' 3 Met., 53.



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420 EVIDENCE. [TIT!



{k) See 78 Ky., 597, and 85 Id., 345.

(/) I have found no decision concerning this subsection.

Poor, <5rV., v. Robinson, &>c, 13 Bush, 290, relates to entries by disinterested
in the books of a bank which had no interest in the controversy.

In Brannin & Smith v. FortSs adm'rs, 12 B, M., 506 (decided in 1851), it was he]
if, as has been held in some of the States, proof of entries in an account book is adr
for any purpose in favor of the party who made them, it is not admissible for the pur]
showing that he had paid the note on which he was sued by the payee's administrat

And in Lawhorn v. Carter, 1 1 Bush, 7, which was an action by a surviving partn
note of the defendant to the firm, it was held that the plaintiff's testimony as to
made on the books of the firm by his partner and by clerks, all of whom were des
incompetent to prove that the firm had not received certain goods alleged to hai
delivered by the defendant ; first, because the account showed on its face that it <
contain the original entries of the items appearing on it; and, secondly, beca
account book is not admissible to establish a negative proposition.

(m) The assignment of a check to which a firm is equitably entitled, made by tl
owner of it after the death of the drawer, to one member of the firm at the request
other, does not make the latter a competent witness for the former, in an action
the drawer's executor. 80 Ky., 455-56.

(») As to the meaning of this section so far as it relates to attesting witnesses t
see General Statutes, ch. 113, \ 13.

§ 607 [671]. titer objections go to credibility of witness. — All
objections to witnesses shall go to their credit alone, and be weigh
the jury or tribunal to which their evidence is offered.

§ 608 [672]. Interrogator's testimony as to new matter. — In equ
actions, if a party, in answering interrogatories, state new mattei
responsive to the inquiries, the party interrogating may, befor
trial, file his written statement, under oath, concerning such nev
ters, which shall be read as a deposition, though the party so ansv
may have died or have become a prisoner or of unsound mind.

§ 609 [673]. In ordinary actions, if a party, in answering inte
tories, or when introduced as a witness, state new matters not re
sive to the inquiries of the adverse party, the latter shall be allov
testify orally concerning such new matter, though the party so ansv
may have died or have become a prisoner or of usound mind.

PART III.

PERPETUATION OF EVIDENCE.

§ 610. Who may perpetuate evidence.

J 611. Proceedings against expected adverse party.

J 612. How depositions to be taken, &c.

J 613. Circumstances under which they may be read.

$ 614. Upon trial in another county, copies may be read.

\ 615. Evidence heretofore perpetuated.

§ 610 [676]. Who may perpetuate evidence. — A person who resi
this State and expects to be a party to an action in a court here<



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PERPETUATION OF EVIDENCE. 421

g a non-resident of this State, has an interest in real property
ncerning which he expects to be a party to an action in a
:of ; and who desires to perpetuate the testimony of witnesses,
in the circuit court of the county in which he resides, or in
* property is situated, a petition in equity, verified by his
tating —

it he expects to be a party to an action in a court of this
1 the nature of the expected controversy.
: name, age, and place of residence, of the expected adverse
known by the petitioner; or his ignorance thereof, if not
him.

t the evidence of witnesses — whose names and the facts, gen-
pected to be proved, shall be stated — is believed by the
to be material to him.

: obstacles preventing the commencement of the action or
g, if he expects to commence the same.
\p77> 679]. Proceedings against expected adverse party. — I,
:ted adverse party shall be summoned and proceeded against
le manner as a defendant to an action.

er such expected party is brought before the court, actually or
vely, the court may, in its discretion, make an order for the
on of the witnesses.

"678, 680]. How depositions to be taken. — i. If the examin-
ee witnesses be permitted by the court, their depositions shall
certified, and delivered or sent to the clerk of the court, and
y him, as depositions in equitable actions.
\ petitioner shall pay all costs incurred.

681]. Circumstances under which they may be read. — Upon a
e controversy in the petition mentioned, between the persons
med as expected parties or their representatives or successors,
ositions, subject to exceptions as if they had been taken
;he action, may be read by either party under the circum-
escribed in § 554.

682]. Upon trial in another county \ copies may be read. — If the
ot in the court in which the deposition is filed, it and the
>rder, notice, and proof of service, or certified copies thereof,
ad as evidence.

[683]. Eindence heretofore perpetuated. — Evidence which has
lay be perpetuated, agreeably to laws heretofore in force, may
1 the trial of any action or suit which has been or may be com-
"i any court of this State, subject to exceptions as if they had
n pending such suit or action.



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422 MISCELLANEOUS PROCEEDINGS. [Til



TITLE XIV.

MISCELLANEOUS PROCEEDINGS.

Chap. i. Security for costs.

" 2. Motions and notices.

tl 3» Offer to compromise.

" 4. Submitting a contrmiersy.

" 5* Offer to confess judgment.

" 6. Proceedings upon executions and distress warrants.

" 7. Proceedings by sureties.

CHAPTER I.

SECURITY FOR COSTS.

t 616. Surety for costs, who must give.

§ 617. . dismissal of action on failure to give.

I 618. must be given by plaintiff, becoming non-resident.

i 619. insolvent guardian, &c, may be required to give.

§ 620. motion for additional.

i 621. liability of attorney as.

§ 616 [684]. Who must give security for costs. — A plaintiff w
nonresident of this State, or a corporation other, than a bank crea
the laws of this State, before commencing an action, shall file
clerk's office a bond of a sufficient surety, to be approved
clerk (a), for the payment of all costs which may accrue in the
in the court in which it is brought, or in any other to which it r
carried, either to the defendant or to the officers of the courts.

(a) As was held with reference to the giving of security for costs under .£ 414,
nizances of record, in civil as well as criminal cases, when taken as security,
inconsistent with any statute prescribing the form of such security," are valid obi
Kinney \ <5rV., v. Batman* s ex y x y 6 Bush y 696. But it seems clear that that doctrine
apply to sureties for costs under J 616.

§ 617 [685]. Dismissal of action for failure to give bond for c
An action in which a bond for costs is not given, as is required by
shall be dismissed on the motion of the defendant at any time
judgment, unless in a reasonable time, to be allowed by the coui
the motion is made therefor, such bond be filed, securing all pa
future costs ; and the action shall not be dismissed or abated, if ;
for costs be given in such time as the court may allow.

§ 618 [686]. Bond by plaintiff becoming non-resident. — If the p
in an action, after its institution, become a non-resident of this
he shall give security for costs in the manner and under the resti
provided in the preceding sections of this chapter.



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CHAP. II.] MOTIONS AND NOTICES. 423

§ 619 [687]. Bond by insolvent guardians, &c. — A guardian, curator,
committee, or next friend, suing for a person under disability ; and
every plaintiff suing as an assignee, except an indorsee of a bill of
exchange or a promissory note placed upon thd footing of a bill of
exchange, when insolvent, may be required to give security for costs ;
and on failure to do so in a reasonable time after it is directed by the
court, upon the motion of the defendant his action shall be dismissed.

If both an infant plaintiff and his next friend are insolvent, the court may allow them
to sue in forma pauperis. 12 Bush % 125.

§ 620 [688]. Motion for additional surety for costs. — In an actfon in
which a bond for costs has been given, the defendant may at any time
before judgment, after reasonable notice to the plaintiff, move the court
for additional security on the part of the plaintiff; and, if, on such
motion, the court be satisfied that the surety in the plaintiff's bond has
removed from this State, or is not sufficient for the amount thereof, it
may dismiss the action, unless in a reasonable time, to be fixed by the
court, sufficient security be given by the plaintiff.

§ 621 [689]. Liability of attorneys for costs. — If process be issued in
an action by the direction of an attorney for a plaintiff who is required
by the first section of this chapter to give security for costs, but who
has failed to do so, the attorney shall be liable as surety for the costs in
the action, until a bond is given ; and his liability may be enforced by
orders of court, and by proceedings as for contempt, if they be not
obeyed.

Though {744 declares that " the appellant may be required to give security for costs as
plaintiffs in civil actions may be so required," an attorney prosecuting an appeal for a non-
resident defendant is not liable for costs, though no security may have been given therefor ;
and even if such liability existed, the Court of Appeals would have no power to enforce it.
2 4/*/., 1 13-14.

CHAPTER II.

MOTIONS AND NOTICES.

i 622. Order defined.
% 623. Motion defined.

\ 624. Notice, requisites of, and by whom to be served.
\ 625. how served generally.

\ 626. when court may direct mode of serving.

\ 627. how served on person under disability.

\ 628. corporations.

\ 629. married women.

\ 630. absent defendants.

,\ 631. to attorney, of motion or proceeding.

{ 632. to take depositions.

i 633. punishment of officer failing to serve.



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424 MISCELLANEOUS PROCEEDINGS. [TIT]



§ 622 [690]. Order defined. — A direction or decision of a cot
judge entered upon the order-book or made in writing, in an a
and not final, is an order.

§623 [691]. Motion defined. — An application for an order
motion.

See $ 444 and note (c) thereto, as to statutory motions and motions not authori
statute ; and see §g 444 to 449, and notes, as to proceedings on motions.

§624 [692]. Requisites of notice, and by whom to be served. — 1.
notices mentioned in this Code must be in writing, must concisely
the purport thereof (a), and may be served by an officer who is ai
ized to serve a summons, or by any person who is over the aj
sixteen years and not a party to, nor interested in, the action.

2. The person who serves a notice must, by an indorsement <
state when and how it was seryed ; and, if a copy of it be not deli
to the person to whom it is directed, the indorsement must stai



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 57 of 142)