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TITLE 2.

General

mode of

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.

§ 845. The usual mode of administering an oath, now practiced, by swearing. 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.

When kiss-
ing the gos.
pels dis-
pensed
with.

When affirmation

§ 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 everliving God". While so swearing, he may or may not hold up his hand, at his option.

§ 847. A solemn declaration or affirmation, in the following form, to be made. 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”.

Other modes of

§ 848. If the court or officer, before which or whom a person is swearing. 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. § 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 eight hundred and fortyfive or section eight hundred and forty-six of this act.

Swearing persons not

Court may examine

witness.

Swearing falsely in

§ 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.

§ 851. A person swearing, affirming or declaring, in any form, where any form, an oath is authorized by law, is lawfully sworn, and is guilty 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.

perjury.

Bel

TITLE II.

Compelling the attendance and testimony of a witness.

SECTION 852. Mode of serving subpœna issued out of a court.
853. Penalty for disobedience.

854. Subpoena to be issued by judge, etc.

855. Penalty for disobeying subpoena; warrant for witness.
856. When witness to be imprisoned.

857. Contents of warrant.

858. To whom directed; how executed.

859. Qualification of preceding sections.

860. Witness exempt from arrest.
861. When to be discharged from arrest.

862. By whom witness may be discharged
863. Arrest, when void; penalty.

864. Sheriff not to be liable, unless affidavit is made.
865. Application of foregoing provisions to judgments.
866. Records not to be removed by virtue of subpoena.
867. Id.; books of account.

868. Books, etc., of corporation, how produced.

869. When personal attendance not required by supœna duces tecum.

TITLE 2.

serving

§ 852. A subpoena, issued out of the court, to compel the attendance of Mode of a witness, and, where the subpoena so requires, to compel him to bring subpoňa with him a book or paper, must be served as follows:

1. The original subpoena must be exhibited to the witness.

2. A copy of the subpoena, or a ticket containing its substance, must be delivered to him.

3. The fees allowed by law, for travelling to, and returning_from, the place where he is required to attend, and for one day's attendance, must be paid or tendered to him.

issued out of a court.

disobedi

§ 853. A person so subpoenaed, who fails, without reasonable excuse, Penalty for to obey the subpoena, or a person who fails, without reasonable excuse, enco to obey an order, duly served upon him, made by the court or a judge, in an action, before or after final judgment therein, requiring him to attend, and be examined, or so to attend, and bring with him a book or a paper, is liable, in addition to punishment for contempt, for the damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. Those sums may be recovered in one action, or in separate actions. If he is a party to the action in which he was subpoenaed, the court may, as an additional punishment, strike out his pleading.

§ 854. Where a judge, or an arbitrator, referee, or other person, or a Subpoena board or committee, has been heretofore, or is hereafter expressly by judge, authorized by law, to hear, try, or determine a matter; or to do any etc. other act in an official capacity, in relation to which proofs may be taken, or the attendance of a person as a witness may be required; or to require a person to attend, either before him or it, or before another judge, or officer, or a person designated in a commission issued by a court of another State or country, to give testimony, or to have his deposition taken, or to be examined; a subpoena may be issued, by and under the hand of the judge, arbitrator, referee, or other person, or the chairman, or a majority, of the board or committee, requiring the person to attend; and also, in a proper case, to bring with him a book. or a paper. The subpoena must be served, as prescribed in section eight hundred and fifty-two of this.act. This section does not apply to a matter arising, or an act to be done, in an action in a court of record.

disobeying

§ 855. A person who is duly subpoenaed, as prescribed in the last Penalty for section, must obey the subpoena. If he fails so to do, without a reason- subpoena; able excuse, he is liable, in addition to any other punishment which warrant may be lawfully inflicted therefor, for the damages sustained by the for witness. person aggrieved, in consequence of the failure, and fifty dollars in addition thereto, to be recovered as prescribed in section eight hundred and fifty-three of this act. If he fails to attend, the officer, or other person, or the body, issuing the subpoena, upon proof of due service thereof, and, where it required the witness's attendance before another person, upon proof of the failure to attend, must issue a warrant to the sheriff of the county, commanding him to apprehend the defaulting witness, and bring him before the officer, person, or body, before whom or which his attendance was required.

TITLE 2. When wit

impris

oned.

§ 856. If a person, subpoenaed and attending, or brought, as preness to be scribed in the last section, before an officer or other person, or a body, refuses without reasonable cause, to be examined; or to answer a legal and pertinent question; or to produce a book or paper, which he was directed to bring, by the terms of the subpoena; or to subscribe his deposition, after it has been correctly reduced to writing; the officer, or other person, or the body, issuing the subpoena, must, by warrant, commit him to jail, there to remain, until he submits to do the act which he was so required to do, or is discharged according to law.

Contents

of warrant.

To whom directed;

how exe

cuted.

§ 857. A warrant of commitment, issued as prescribed in the last section, must specify particularly the cause of the commitment; and, if the witness is committed for refusing to answer a question, the question must be inserted in the warrant.

§ 858. A warrant to apprehend or commit a person, issued as prescribed in this title, must be directed to the sheriff of the county where the person is, and must be executed by him, in the same manner, as a similar mandate issued, by a court of record, in an action.

Qualifica § 859. The foregoing sections of this title do not apply to a subpœna tion of preceding sec- issued by a justice of the peace; or to a witness subpoenaed to attend tions. a court held by a justice of the peace; or to a case where special provision is otherwise made by law, for compelling the attendance of a witness.

Witness exempt from arrest.

When to be discharged

arrest.

§ 860. A person duly and in good faith subpoenaed or ordered to attend, for the purpose of being examined, in a case where his 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.

§ 861. The court from which a subpoena, served in good faith, was from issued, or by which an order was made, requiring a person to 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 violation of the last section.

By whom witness

charged.

§ 862. A justice of the supreme court, in any part of the State, or a may be dis- 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.

Arrest, when void; penalty.

Sheriff not to be liaaffidavit is

§ 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.

§ 864. But a sheriff, or other officer, or person, is not so liable, unless ble, unless the person claiming an exemption from arrest, makes, if required by inade. the sheriff or officer an affidavit to the effect that he was legally sub

pœnaed 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.

TITLE 2.

tion of fore

§865. The foregoing provisions of this title, relating to a person re- Applica quired, by an order of a court, to attend, apply, where such an attend- going proauce is required by the terms of a judgment.

visions to judgments.

removed

na.

§ 866. The record of a conveyance of real property, or any other Records record, or document, whereof a transcript duly cerified may by law not to be be read in evidence, shall not be removed, by virtue of a subpoena by virtue duces tecum, from the office in which it is kept; except temporarily, by of subpœthe clerk having it in custody, to a term or sitting of the court of which he is clerk; or by the officer, having it in custody, to a term or sitting of a court, or a trial before a referee, held in the city or town where his office is situated. Where it is required at any other place, it may be removed, by order of the supreme court, a superior city court, or a county court, made in court, and entered in the minutes; specifying that the production of the original, instead of a transcript, is necessary.

of books of

§ 867. A person shall not be compelled to produce upon a trial or Produc hearing a book of account, otherwise than by an order, requiring him tion, etc.. to produce it, or a subpoena duces tecum, served at least five days be- account. fore the day when he is required to attend. At any time after service of such a subpoena or order, the witness may obtain, upon such a notice as the judge, referee, or other officer, prescribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpœna, or the order for production, upon such terms as justice requires, touching the inspection of the book or any portion thereof, or taking a copy thereof, or extracts therefrom, or otherwise. An order may be made, as prescribed in this section, by a judge of the court, or in a special proceeding pending out of court, before an officer, by the officer, or, in either case by a referee duly appointed in the cause, and authorized to hear testimony. A justice of the peace, or other judge of a court not of record, may make such an order in an action brought in his court, at any time after the commencement thereof.

of corpora

tion, how

$868. The production, upon a trial, of a book or paper, belonging to Books,etc., or under the control of a corporation, may be compelled, in like manner as if it was in the hands, or under the control, of a natural person. produced. For that purpose a subpoena duces tecum, or an order, made as prescribed in the last section, as the case requires, must be directed to the president, or other head of the corporation, or to the officer thereof, in whose custody the book or paper is.

sonal at

ed by sub

§ 869. In a case specified in the last section, or where a subpoena When perduces tecum, or an order, made as prescribed in section eight hundred tendance and sixty-six or section eight hundred and sixty-seven of this act, not requir requires a public officer to attend, and bring a book or paper under his pœna duces control, the subpoena or order is deemed to be sufficiently obeyed, if the tecum. book or paper is produced by a subordinate officer or employee of the corporation, or in the public office, who possesses the requisite knowledge to identify it, and to testify respecting the purposes for which it is used. If the personal attendance of a particular officer of the corporation or public officer is required, a subpoena, without a duces tecum clause, must also be served upon him.

TITLE 3.

TITLE III.

Deposition.

ARTICLE 1. Depositions, taken and to be used within the State.
2. Depositions, taken without the State, for use within the State.
3. Depositions, taken within the State, for use without the State

Deposition

ARTICLE FIRST.

DEPOSITIONS, TAKEN AND TO BE USED WITHIN THE STATE.

SECTION 870. Deposition of a party, etc.

871. Deposition of a witness not a party.

872. Application; contents of affidavit.

873. Order for examination.

874. Subpoena.

875. Service of order, etc.

876. Deposition when and where to be taken.

877. Application to vacate order.

*878. Proceedings upon such an application; new order.

879. Deposition by consent.

880. Manner of taking and returning deposition.

881. When to be read in evidence.

882. Proof of witness's inability to attend.

883. Effect of deposition.

884. Original affidavits, evidence.

885. Deposition to be used on motion.

886. Where witness may be compelled to attend.

§ 870. The deposition of a party to an action pending in a court of a party, record or of a person who expects to be a party to an action about

etc.

Deposition of a witness not a party.

Applica

tion; contents of

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be brought in such a court, other than a court specified in subdivision sixteenth, seventeenth, eighteenth or nineteenth of section two of this act, may be taken at his own instance or at the instance of an adverse party or of a co-plaintiff or co-defendant at any time before the trial as prescribed in this article.

§ 871. The deposition of a person not a party, whose testimony is material and necessary to a party to an action, pending in a court record, other than a court specified in sub-division sixteenth, sev~~ teenth, eighteenth or nineteenth of section two of this act, or to son who expects to be a party to an action, about to be brought a court, by a person other than the person to be examined, mɛ be taken, as prescribed in this article.

§ 872. The person desiring to take a deposition, as prescribed in article, may present to a judge of the court in which the action anidavit. pending; or, if it is pending in the supreme court, to a county juds or, if an action is not pending, but is expected to be brought, " judge of the supreme court, or of a superior city court, or to a co judge; an affidavit, setting forth as follows:

1. The names and residences of all the parties to the action whether or not they have appeared; and, if either of them appeared by attorney, the name, and the residence or office addre the attorney; or, if no action is pending, the names and resid of the expected parties thereto.

2. The nature of the action, and the substance of the cause of act and of the judgment demanded therein; or, if no action is pendi the nature of the controversy, which is expected to be the subje thereof.

160

*Stricken out.

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