visions to

pænaed 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 subpænaed or ordered. The affidavit may be taken before the officer arresting him, and exonerates the officer from liability for not making the arrest.

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

judgments. § 866. The record of a conveyance of real property, or any other Records record, or document, whereof a transcript duly certified may by law not to be be read in evidence, shall not be removed, by virtue of a subpæna by virtue duces tecum, from the office in which it is kept ; except temporarily, by na.

of subpæthe 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.

§ 867. A person shall not be compelled to produce upon a trial or id. ; books hearing a book of account, otherwise than by an order, requiring him

of account. to produce it, or a subpæna duces tecum, served at least five days before the day when he is required to attend. At any time after service of such a subpæna or order, the witness may obtain, upon such notice as the judge, referee, or other officer, prescribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpæna, 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.

8 868. 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

tion, how as if it was in the hands, or under the control, of a natural person, produced. For that purpose a subpæna 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.

§ 869. In a case specified in the last section, or where a subpæna When perduces tecnm, or an order, made as prescribed in section eight hundred fenalace and sixty-six or section eight hundred and sixty-seven of this act, not requirrequires a public officer to attend, and bring a book or paper under his pæna duces control, the subpæna 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 subpæna, without a duces tecum clause, must also be served upon him.

of corporaTITLE 3.



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



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. Subpæna.
875. Service of order, etc.
876. Deposition when and where to be taken.
*877. Application to vacate ordet.
*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.


of a witness not a

tents of affidavit.

Deposition 8 870. The depositions of a party to an action, pending in a court of of a party, record, other than a court specified in sub-division sixteenth, seven

teenth, eighteenth or nineteenth of section two of this act, may be taken, 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. Deposition § 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 of party. record, other than a court specified in sub-division sixteenth, seven

teenth, eighteenth or nineteenth of section two of this act, or to a person who expects to be a party to an action, about to be brought in such a court, by a person other than the person to be examined, may also

be taken, as prescribed in this article. Applica- $ 872. The person desiring to take a deposition, as prescribed in this tion; con

article, may present to a judge of the court in which the action is pending; or, if it is pending in the supreme court, to a county judge; or, if an action is not pending, but is expected to be brought, to a judge of the supreme court, or of a superior city court, or to a county judge; an affidavit, setting forth as follows:

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

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

*Stricken out.

3. If the application is made by the defendant in a pending action, ART, 1. or by the plaintiff, after answer, the nature of the defence.

4. The name and residence of the person to be examined, and that the testimony of such a person is material and necessary for the party making such application, or the prosecution or defence of such action, and, at the option of the applicant, the place where he is sojourning, or where he regularly transacts business.

5. If an action is pending that the person to be examined is about to depart from the State; or that he is so sick or infirm, as to afford reasonable ground to believe, that he will not be able to attend the trial. But this subdivision does not apply to a case, where the person to be examined is a party to the action.”

6. If no action is pending, that the person expected to be the adverse party is of full age, and a resident of the State, or sojourning within the State; or, if two or more persons are expected to be adverse parties, that they are all so resident or sojourning.

7. Any other fact, necessary to show that the case comes within one of the last two sections, or relevant to the question specified in the next section.

$ 873. The judge, to whom such an affidavit is presented, must grant Order for an order for the examination, if an action is pending; if no action is ticaminapending he must grant it, if there is reasonable ground to believe that an action will be brought, as stated in the affidavit; otherwise he must dismiss the application. The order must require the party or person to be examined to appear before the judge, or before a referee named in the order, for the purpose of taking the examination, at a time and place therein specified. The order must also direct the time of service of a copy thereof; which must be made within the State, not more than twenty, nor less than five days, before the time fixed for the examination, unless special circumstances, making a different time of service necessary, are shown in the affidavit, and that fact is recited in the order.

§ 874. If the party or person so served fails to obey the order, his Subpæna. attendance may be compelled, and he may be punished, in like manner, and the proceedings thereon are the same, as if he failed to obey a subpena, issued from the court, in which the action is pending; or, if 110 action is pending, from the court of which the judge is a member.

8 875. A copy of the order, and of the affidavit upon which it was Service of granted, must be served upon the attorney for each party to the action,

order, etc. who is required thereby to appear, in like manner as a paper in the action; or, if a party has not appeared in the action, they must be served upon him, as directed by the order. If no action is pending, they must be personally served upon each of the persons, named therein as expected adverse parties.

8 876. Upon proof, by affidavit, that service of a copy of the order Deposition and of the affidavit has been duly made, as directed in the order, the judge or the referee must proceed to take the deposition of the wit- be taken. ness, at the time and place specified in the order. He may, from time to time, adjourn the examination to another day, and to another place, within the same county.

8 879. The parties to an action may stipulate, in writing, that the Deposition deposition of a competent witness, to be used therein, may be taken by consent. before a judge or referee, at a time and place specified in the stipula[11]


when and where to



Manner of


tion, either orally, or upon interrogatories, to be agreed upon in like

The witness may be subpænaed to attend the examination, as upon a trial; and the judge or referee may take his deposition, as if an order had been made by the court, directing it to be so taken.

S. 880. The judge or referee taking a deposition, as prescribed in this returninga article, must insert therein every answer or declaration of the person deposition, examined, which either party requires to be inserted. The deposition,

when completed, must be carefully read to and subscribed by the witness; must be certified by the judge or referee taking it; and, within ten days thereafter, must be filed in the office of the clerk; or, if no action is pending, in the office of the clerk of the county in which it was taken; together with the stipulation or order, under which it was taken; the affidavit upon which the order was granted; and proof of

the service of a copy of the order and of the affidavit. When to 8 881. The deposition, or a certified copy thereof, may be read in evibe read in evidence. dence by either party, at the trial of, or upon the assessment of dam

ages, by writ of inquiry, or upon a reference, or otherwise, in, the action specified in the original affidavit or stipulation; or any other action, thereafter brought, between the same parties, or between any parties claiming under them, or either of them; or, if no action is pending, an action thereafter brought, between the persons named in the original affidavit as expected parties, or between persons claiming

under them or either of them. Proof of S 882. But such a deposition, except that of a party, taken at the inability to instance of an adverse party, or a deposition taken in pursuance of a

stipulation, as prescribed in this article, shall not be so read in evidence, until it has been satisfactorily proved, that the witness is dead, or is unable personally to attend, by reason of his insanity, sickness, or other infirmity; or that he has been and is absent from the State, so that his attendance could not, with reasonable diligence, be compelled

by subpæna. Efect of 8 883. A deposition, so read in evidence, has the same effect, and no deposition.

other, as the oral testimony of the witness would have; and an objection to the competency or credibility of the witness; or to the relevancy or substantial competency of a question put to him, or of an answer given by him; may be made, as if the witness was then personally

examined, and without being noted upon the deposition. Original 8 884. The original affidavits, filed with such a deposition, or certiaffidavits, evidence.

fied copies thereof, are presumptive evidence of the facts therein con

tained, to show a compliance with the provisions of this article. Deposition 8 885. Where a party intends to make or oppose a motion in a court to be used of record, other than a court specified in subdivision sixteen, seventeen,


eighteen or nineteen, of section two of this act, and it is necessary for him to have the affidavit or deposition of a person, not a party, to use upon the motion, the court, or a judge authorized to make an order, in the cause, may, in its or his discretion, make an order, appointing a referee to take the deposition of that person. The order must be founded upon proof, by affidavit, that the applicant intends to make the motion, or that notice of a motion has been given, which the applicant intends to oppose. The affidavit must specify the nature of the motion, and must show that the affidavit or deposition is necessary thereon, and that such person has refused to make an affidavit of the facts, which the applicant verily believes are within his knowledge. The order may be

ART. 2.

made upon or without notice. The person to be examined may be subpænaed, and compelled to attend, as upon the trial. The deposition, when taken, must be delivered to the attorney for the party who procured the order, unless the order provides for a different disposition thereof.

8 886. Where a person to be examined, as prescribed in this article, where is a resident of the State, he shall not be required to attend in any witness county, other than that in which he resides, or where he has an office for compelled the regular transaction of business, in person. Where he is not a resident, he shall not be required to attend in any other county, than that wherein he is served with a subpæna, unless, for special reasons, stated in the affidavit, the order otherwise directs.

to attend.



SECTION 887, 888. When commission to issue, etc.

889. How and upon what terms granted.
890. Order made by judge.
891. Interrogatories; how settled.
892. Id, ; to be annexed ; directions for return.
893. Commission to examine upon oral questions.
894. When open commission may issue, or depositions may be taken.
895. Last two sections not applicable to infants, etc., or foreign coun-

896. Notice of examination upon oral questions.
897. Open commission.
898. Order directing depositions to be taken.
899. Before whom depositions may * taken; notice of taking.
900. How depositions taken.
901. Commission or order to take depositions; how executed and re-

902. Certificate of execution.
903. Certificate, a sufficient return.
904. Return by agent.
905. If agent is sick or dead.
906, 907. Filing deposition, etc., so returned.
908. Commission, etc., by consent.
909. Where return to be kept; parties may inspect it, etc.
910. When deposition may be suppressed.
911. Depositions, etc., evidence.
912, When interrogatories and deposition may be in a foreign language. ,
913. Letters rogatory.

8 887. In a case specified in the next section, where it appears, by When comaffidavit, on the application of either party, that the testimony of one mission to

*So in the original.


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