Which affidavit may be taken by such officer, and when so taken, shall exonerate such officer from all liability for not making such ar rest. ART. 7. ARTICLE SEVENTH. Of Documentary Evidence, and the Preservation thereof. SEC. 56. Affidavits of publishing notices, how made and filed. 57. Also of notices of sale of real estate. 58. Effect of such affidavits, &c. as evidence. 59. Copies of proceedings, records, &c. how to be certified; seal of county clerks. 60. Last section not to apply to copies of certain papers. 61. Seals of courts, &c. may be impressed on paper. 62. Private seals to be on wafer, or wax, &c. 63. Clerks, &c. to receive papers offered for safe keeping. 64. Papers, how to be endorsed, filed and kept. 65. Not to be delivered out, except in certain cases. 66. But open to public examination. 67. Certain officers to receive wills, for safe keeping. 68. Will how to be enclosed and endorsed; not to be opened, &c. 69. To whom will to be delivered. 70. Surrogate to open will on death of testator, &c. publishing $56. When notice of any application to any court or judicial offi- Affidavits of cer for any proceeding authorised by law, is required to be published notices. in one or more newspapers, an affidavit of the printer of such newspaper, or of his foreman or principal clerk, annexed to a printed copy of such notice taken from the paper in which it was published, and specifying the times when, and the paper in which such notice was published, may be filed with the proper officer of the court, or with the judicial officer before whom such proceeding shall be pending, at any time within six months after the last day of the publication of such notice. $57. When any notice of a sale of real property is required by Ib. of sales of law to be published in any newspaper, an affidavit of the printer of real estate. such paper, or of his foreman or principal clerk, annexed to a printed copy of such notice taken from the paper in which it was published, and specifying the times when, and the paper in which such notice was published, may be filed at any time within six months after the last day of such publication, with the county clerk of the county in which the premises sold are situated; or if such sale were made in pursuance of the order of any surrogate or court of equity, such affidavit may be filed with such surrogate, or with the clerk of such court, as the case may be. $58. The original affidavits so filed pursuant to the two last sections, and copies thereof duly certified by the officer in whose custody the same shall be, shall be presumptive evidence in all cases, and before every court, of the facts contained in such affidavit. To be evidence. proceedings, $59. Whenever a certified copy of any affidavit, record, docu- Copies of ment, or other paper, is declared by law to be evidence, such copy &c. how cershall be certified by the clerk or officer in whose custody the same is tified. TITLE 3. required by law to be, to have been compared by him with the original, and to be a correct transcript therefrom, and of the whole of such original; and if such officer have any official seal by law, such Seal of coun- certificate shall be attested by such seal; and if such certificate be given by the clerk of any county, in his official character as such clerk, it shall be attested by the seal of the court of common pleas of the county of which he is clerk. ty clerks. Last section qualified. Seals of courts, &c. may be stamped. Private scals fer, &c. Papers offered for safe $60. But the last section shall not be construed to require the affixing of the seal of any court to any certified copy of any rule or order made by such court, or of any paper filed therein, when such copy is used in the same court, or before any officer thereof; nor to require the seal of the supreme court to be affixed to a certified copy of any rule or order of that court, when used in any circuit court. $61. In all cases where a seal of any court, or of any public officer, shall be authorised or required by law, the same may be affixed by making an impression directly on the paper, which shall be as valid as if made on a wafer or on wax. $62. But the last section shall not extend to private seals, which tee on wa shall be made as heretofore, on wafer, wax, or some similar substance. $ 63. The clerk of every county in this state, and the register of keping, to deeds in the city and county of New-York, upon being paid the fees allowed therefor by law, shall receive and deposit in their offices respectively, any deeds, conveyances, wills, or other papers or documents, which any person shall offer to them for that purpose; and shall give to such person a written receipt therefor. be received. How to be endorsed and kept. Not to be delivered out, & C. May be ex amined pub licly. Wills to be received for $ 64. Such instruments, papers and documents, shall be properly endorsed, so as to indicate their general nature and the names of the parties thereto, shall be filed by the officer receiving the same, stating the time when received, and shall be deposited and kept by him and his successors in office, with his official papers, in some place separate and distinct from such papers. $ 65. The instruments, papers and documents so received and deposited, shall not be withdrawn from such office, except on the order of some court of record, for the purpose of being read in evidence in such court, and then to be returned to such office; nor shall they be delivered without such order, to any person, unless upon the written order of the person or persons who deposited the same, or their executors or administrators. $66. Such instruments, papers and documents so deposited, shall be open to the examination of any person desiring the same, upon payment of the fees allowed by law. $67. The clerk of every county in this state, the register of deeds safe keeping in the city and county of New-York, and the surrogate of every county, upon being paid the fees allowed therefor by law, shall receive and deposit in their offices respectively, any last will or testament ART. 8. which any person shall deliver to them for that purpose, and shall give a written receipt therefor to the person depositing the same. sealed up, &c. $ 68. Such will shall be enclosed in a sealed wrapper, so that the Will to be contents thereof cannot be read, and shall have endorsed thereon the name of the testator, his place of residence, and the day, month and year when delivered; and shall not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same, as herein after directed. $69. Such will shall be delivered only, 1. To the testator in person: or, 2. Upon his written order, duly proved by the oath of a subscribing witness: or, 3. After his death, to the persons named in the endorsement on the wrapper of such will, if any such endorsement be made thereon: or, 4. If there be no such endorsement, and if the same shall have been deposited with any other officer than a surrogate, then to the surrogate of the county. To whom to be delivered. be opened by $70. If such will shall have been deposited with a surrogate, or Will when to shall have been delivered to him as above prescribed, such surrogate, surrogate,&c. after the death of the testator, shall publicly open and examine the same, and make known the contents thereof, and shall file the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof; or until required by the authority of some competent court to produce the same in such court. ARTICLE EIGHTH. Of the Examination of Witnesses, of certain rules of Evidence, and of Evidence in certain cases. SEC. 71. Witness compelled to answer questions subjecting him to civil suits. 72. Ministers not to disclose confessions. 73. Physicians, &c. not to disclose certain information. 74. Proof respecting loss of instruments. 75 & 76. When recovery may be had on lost notes, &c. answer cer $71. Any competent witness in a cause, shall not be excused Witness to from answering a question relevant to the matter in issue, on the tain ques ground merely that the answer to such question may establish, or tend tions. to establish, that such witness owes a debt, or is otherwise subject to a civil suit. But this provision shall not be construed to require a witness to give any answer which will have a tendency to accuse TITLE 3. himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture, nor in any respect to vary or alter any other rule respecting the examination of witnesses. Confessions to ministers. Information to physicians, &r. Evidence of lost instruments. Recovery on lost notes, &c. Bond to be given. Effect of seals to instruments Defence to actions on them. Certain mis takes to be $72. No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination. $73. No person duly authorised to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient, in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him, as a surgeon. $74. Whenever a party to any action shall have been permitted to prove by his own oath the loss of any instrument, in order to admit other proof of the contents thereof; the adverse party may also be examined by the court on oath, to disprove such loss, and to account for such instrument. $75. In any suit founded upon any negotiable promissory note or bill of exchange, or in which such note, if produced, might be allowed as a set-off in the defence of any suit, if it appear on the trial that such note or bill was lost while it belonged to the party claiming the amount due thereon, parol or other evidence of the contents thereof may be given, on such trial, and notwithstanding such note or bill was negotiable, such party shall be entitled to recover the amount due thereon as if such note or bill had been produced. $76. But to entitle a party to such recovery, he shall execute a bond to the adverse party, in a penalty at least double the amount of such note or bill, with two sureties, to be approved by the court in which the trial shall be had, conditioned to indemnify the adverse party, his heirs and personal representatives, against all claims by any other person on account of such note or bill, and against all costs and expenses by reason of such claim. $77. In every action upon a sealed instrument, and where a setoff is founded upon any sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration which may be rebutted in the same manner, and to the same extent, as if such instrument were not sealed. $78. The defence allowed by the last section, shall not be made, unless the defendant shall have pleaded the same, or shall have given notice thereof, at the time of pleading the general issue, or some other plea denying the contract on which the action is brought. $79. Every variance between process, pleadings, or any instrudisregarded ment in writing, recited or referred to in any other process, pleading or record, and every mistake in the name of any officer or other per son, in stating any day, month or year, or in the description of any ART. 9. property, in any pleading or record, which, according to law, could be amended by the court after verdict rendered in any cause, shall be disregarded upon the trial of such cause, unless such variance or mistake be calculated to surprise and mislead the adverse party, and to prevent his making due preparation for a full answer on the merits, to the matter concerning which, such variance or mistake shall have been made. by corpora $80. In suits by or against an aggregate corporation, the admis- Confessions sion of any member thereof not named on the record as a party to such tors. suit, shall not be received as evidence against such corporation, unless such admission was made concerning some transaction, in which such member was the authorised agent of such corporation. witnesses in $81. Any member of a corporation aggregate, not named on the Corporators record as a party to a suit brought by or against such corporation, certain cases. shall be received as a competent witness, to testify to any matter against the interest of such corporation. ARTICLE NINTH. Of the Administration of Oaths and Affirmations. SEC. 82. General mode of swearing by kissing the gospels. mode of $82. The usual mode of administering oaths now practised, by General the person who swears, laying his hand upon and kissing the gospels, swearing. shall be observed in all cases in which an oath may be administered, according to law, except in the cases herein after otherwise provided.25 pensed with. $83. Every person who shall desire it, shall be permitted to When dis swear in the following form: "You do swear in the presence of the ever living God;" and while so swearing, such person may or may not hold up his hand, in his discretion.25 mation to be $84. Every person who shall declare that he has conscientious When affirscruples against taking any oath, or swearing in any form, shall be per- made. mitted to make his solemn declaration or affirmation in the following form: "You do solemnly, sincerely and truly, declare and affirm.""26 $85. Whenever the court before which any person shall be offer- Other pecued as a witness, shall be satisfied that such person has any peculiar swearing. mode of swearing connected with, or in addition to, the laying of his hand upon the gospels and kissing the same, which is more solemn (25) 1 R. L. p. 386, § 15. (26) Ib. § 16. liar modes of |