JUSTICE'S Taking and return tion. 3. That, according to the practice of the court, in which the action, suit, or special proceeding is pending, the deposition of a witness, taken as prescribed in this section, and the next section, will be received on the trial or hearing. The justice must issue a subpoena, commanding the witness to appear before him, at a specified time, and at a place within the town or city, in which the witness resides or sojourns, to testify in the action, suit or special proceeding. [L. 1831, ch. 191, § 1 (3 R. S., 5th ed., 680; 4 Edm., 637), with like amendments. The reference, in sub. 1, to territorial courts, and courts of the United States, is new.] § 919. The officer, before whom a witness appears, in a case speciof deposi- fied in this article, must take down his testimony in writing; and must certify and transmit it to the court, in which the action, suit or special proceeding is pending, as the practice of that court requires. [Id., § 2, amended so as to apply to all cases under this article.] Penalty for not § 920. A person, who fails to appear, at the time and place speciappearing. fied in a subpoena, issued as prescribed in this article, and duly served upon him; or to testify; or to subscribe his deposition, when correctly taken down; is liable to the penalties, which would be incurred in a like case, if he was subpoenaed to attend the trial of an action in a justice's court; and, for that purpose, the officer, before whom he is required to appear, possesses all the powers of a justice of the peace upon a trial. [Id., § 3.] Certain official certifil cates, TITLE IV. Documentary evidence. ARTICLE 1. Documentary evidence, as a substitute for oral testimony. ARTICLE FIRST. DOCUMENTARY EVIDENCE, AS A SUBSTITUTE FOR ORAL TESTIMONY. § 921. Where the officer, to whom the legal custody of a paper belongs, certifies, under his hand and official seal, that he has made diligent examination, in his office, for the paper, and that it cannot be found, the certificate is presumptive evidence of the facts so certified, as if the officer personally testified to the same. [2 R. S., 552, Part 3, ch. 8, tit. 17, § 12 (3 R. S., 5th ed., 866; 2 Edm., 573). As to lost documents, see 68 N. Y., 529.] PART II. etc., on file, evidence. § 922. Where a public officer is required or authorized, oy special Certificate, provision of law, to make a certificate or an affidavit, touching an act performed by him, or to a fact ascertained by him, in the course of his official duty; and to file or deposit it in a public office of the State; the certificate or affidavit, so filed or deposited, or an exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated, by special provision of law. [This section is intended to supply the place of numerous provisions of law, making certificates of officers evidence, in particular cases. No reason is apparent why, in all cases, such certificates should not be presumptive evidence of the facts therein stated.] certificate § 923. [Amended, 1877.] The certificate of a notary public of Notary's the State, under his hand and seal of office, of the presentment by evidence. him, for acceptance or payment, or of the protest, for non-acceptance or non-payment, of a promissory note or bill of exchange, or of the service of notice thereof on a party to the note or bill; specifying the mode of giving the notice, the reputed place of residence of the party to whom it was given, and the post-office nearest thereto; is presumptive evidence of the facts certified, unless the party, against whom it is offered, has served upon the adverse party, with his pleading, or within ten days after joinder of an issue of fact, an original affidavit, to the effect, that he has not received notice of non-acceptance, or of non-payment of the note or bill. A verified answer is not sufficient as an affidavit, within the meaning of this section. [L. 1833, ch. 271, §8 (3 R. S., 5th ed., 474; 4 Edm., 619); amended by inserting, in the first line, the words, "of the State," in accordance with Bank of Rochester v. Gray, 2 Hill, 227, and by substituting, at the end of the first sentence, the clause beginning "unless the party, against whom," etc., in place of the last clause of the original. The final sentence is, also, new. The design of the two latter amendments is to regulate, with more precision, the provision relative to an affidavit of non-receipt of notice, and to extend it, so as to meet the case where a note or bill is interposed as a counterclaim. It was held, in Union Bank of Rochester v. Gregory, 46 Barb., 98, that, under the JUSTICE'S MANUAL original provision, the notary's certificate is evidence, where the defendant has received any notice of presentment and non-payment, although such notice may not have been received until a month after the paper became due. The query, put in that case, whether the provision will be complied with, by an allegation in the answer, that the notice was not received, was answered in the negative, in Gawtry v. Doane, 51 N. Y., 84. The concluding sentence of this section will prevent the possibility of the question arising again.] Notary's protest and mem orandum; when § 924. In case of the death or insanity of a notary public of the State, or of his absence or removal, so that his personal attendevidence. ance, or his testimony, cannot be procured, in any mode prescribed by law, his original protest, under his hand and official seal, the genuineness thereof being first duly proved, is presumptive evidence of a demand of acceptance, or of payinent, therein stated; and a note or memorandum, personally made or signed by him, at the foot of a protest, or in a regular register of official acts, kept by him, is presumptive evidence that a notice of non-acceptance or non-payment was sent or delivered, at the time, and in the manner, stated in the note or memorandum. Proof of present [2 R. S., 283, 284, Part 3, ch. 3, tit. 2, §§ 46 and 47 (3 R. S., 5th ed., 474; 2 Edm., 294), consolidated.] 925. Proof of the presentment, for acceptance or payment ment, etc., of a promissory note or bill of exchange, payable in another state, bills. or in a territory, or foreign country, or of a protest of the note or of foreign Affidavit of printer, etc., evidence. bill, for non-acceptance or non-payment, or of the service of notice thereof, on a party to the note or bill, may be made, in any manner authorized by the laws of the state, territory, or country, where it was payable. [L. 1865, ch. 309, second and third sentences of § 1 (6 Edm., 467), amended so as to be more perspicuous.] § 926. [Amended, 1877.] The affidavit of the printer or publisher of a newspaper, published within the State, or of his foreman, or principal clerk, showing the publication of a notice or other advertisement, authorized or required, by a law of the State, to be published in that newspaper, annexed to a printed copy of the notice or other advertisement, may be read in evidence; and is presumptive evidence of the publication, and, also, of the matters stated therein, showing that the deponent is authorized to make the affidavit. But this section does not apply to a case, where the affidavit is required by law to be filed, unless it has been duly filed; or to a case, where the mode of proving a publication is otherwise specially prescribed by law. [L. 1835, ch. 159, § 1 (3 R. S., 5th ed., 686; 4 Edm., 638), amended by adding the concluding sentence, the clause including the publisher, and the clause requiring a copy of the notice, etc., to be annexed to the affidavit. By 2 R. S., 403, Part 3, ch. 7, tit. 3, §§ 56 and 57 (3 R. S., 5th ed., 686; 2 Edm., 419), it is provided that publication of a notice of application to a court, etc., and of notice of a sale of real property, may be proved by the affidavit of the printer, or his foreman or principal clerk, if the affidavit was filed within six months after the last publication day. The act of 1835 was apparently intended to supersede the necessity of filing the affidavit, in ordinary cases, but not to apply to the particular cases, where the affidavit is expressly required to be filed; and a clause has been, accordingly, added, saving such cases. So much of section 58 of the R. S., as permits certified copies of the affidavits on file to be read, is covered by § 933, post. ] PART IL service of § 927. Where it is necessary, upon the trial of an action, to Id.; of prove the service of a notice, an affidavit, showing the service to notice have been made by the person making the affidavit, is presumptive evidence of the service, upon first proving that he is dead or insane, or that his personal attendance cannot be compelled, with due diligence. [L. 1858, ch. 244, § 1 (3 R. S., 5th ed., 683; 4 Edm., 645), amended by adding the last clause.] certificate § 928. [Amended, 1879.] An original certificate of a marriage, Marriage within the State, made by the minister or magistrate by whom it was evidence solemnized; the original entry thereof, made, pursuant to law, in the office of the clerk of a city or a town, within the State; or a copy of the certificate, or of the entry, duly certified, is presumptive evidence of the marriage. [2 R. S., 141, Part 2, ch. 8, tit. 1, § 17 (3 R. S., 5th ed., 229; 2 Edm., 146), with slight amendments.] Book of foreigh be corpora § 929. Where a party wishes to prove an act or transaction of a foreign corporation, the book or books of the corporation may used for that purpose, as presumptive evidence, whether any or all of the parties are or are not members of the corporation. [This and the next two sections are substitutes for L. 1863, ch. 206 (6 Edm., 89), as amended by L. 1869, ch. 589 (7 Edm., согрога tion; when evidence MANUAL 460). The act of 1869 is very obscure and tautologous. JUSTICE'S When a copy evidence. The original has been completely reconstructed, care being taken to preserve its essential provisions. This section embraces part of § 1 of the act. The awkward expression, "the book or books", has been preserved, here, as it will probably be construed as not having the same meanings as "a book” In the other sections, the singular number is used.] § 930. If an original book is not produced at the trial, as prethereof is scribed in the last section, a copy thereof, or of an entry therein, verified as prescribed in the next section, may be used, with like effect as the original book; provided that the party, intending to use the copy, gives the adverse party at least ten days' notice of his intention, specifying briefly the nature of the evidence proposed to be given. But this and the next section do not apply, where the foreign corporation is a party to the action, and seeks to prove its own act or transaction, in its own behalf. How copy to be verified. Statutes, etc., how proved. [Id., parts of §§ 1 and 2.] § 981. The copy must be verified by the deposition, taken as prescribed by law, or the oral testimony, taken at the trial, of the person who made it, or of a person who has examined and compared it with the original book, or the entry therein. The witness must testify that the copy produced is correct; that he made it, or compared it with the original; and that he then knew that the original book so copied, or containing the entry, was the book of the corporation; or that it was then acknowledged to him to be such, by an officer or receiver of the corporation, or a person having the custody thereof, naming the person who made the acknowledgment; and he must specify where, and in whose custody, the original was then kept. [Id., part of § 1.] ARTICLE SECOND. PROOF OF A DOCUMENT, EXECUTED OR REMAINING WITHIN THE STATE. § 932. A statute or joint resolution, passed by the legislature of the State, may be read in evidence from a newspaper, designated, as prescribed by law, to publish the same, until six months after the |