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ART. 3.

guage. Where such an order is made, it must provide for the payment, by the applicant, to the adverse party, of a reasonable sum, fixed therein, for the expense of procuring the interrogatories, in his behalf, to be translated. The judge, who settles the interrogatories, must settle them in the foreign language, and in the English language; and, for that purpose, he may call in the assistance of one or more experts, whose compensation must be fixed by the judge, and paid by the applicant. When the deposition is read in evidence, it, and the interrogatories, must be interpreted into the English language, as if the witness, being unable to speak the English language, was personally present and testifying

8 913. Letters rogatory may be issued from either of the courts spe- Letters ro cified in the last section, in its discretion, in a case where a commission gatory. may be issued, as prescribed in this article, upon satisfactory proof, by affidavit, that there is good reason to believe, that the ends of justice will be better promoted thereby, than by the issuing of a commission; notwithstanding that a commission can be executed, in the country to which they are sent. Letters rogatory can be issued only to examine one or more witnesses, upon written interrogatories, annexed thereto; which must be framed and settled, and the depositions must be returned, as prescribed in this article, with respect to the interrogatories annexed to a commission, and the depositions taken thereunder.

ARTICLE THIRD.

DEPOSITIONS, TAKEN WITHIN THE STATE, FOR USE WITHOUT THE STATE.

SECTION 914. In what cases deposition may be taken.

915. Subpæna to witness.
916. Contents of subpæna.
917. Subpæna, when no commission is issued.
918. Justice of the peace may subpæna witness.
919. Taking and return of deposition,

920. Penalty for not appearing. 8 914. A party to an action, suit, or special proceeding, civil or crim- In what inal, pending in a court without the State, either in the United States, cases depoor in a foreigu country, may obtain, in the manner prescribed in this be taken. article, the testimony of a witness within the State, to be used in the action, suit, or special proceeding.

8 915. Where a commission to take testimony, within the State, has Subpæna been issued from the court, in which the action, suit, or special pro

to witness ceeding is pending; or where a notice has been given, or any other proceeding has been taken, for the purpose of taking the testimony, within the State, pursuant to the laws of the State or country, wherein the court is located, or pursuant to the laws of the United States if it is a court of the United States; the commission, notice, or other paper, authorizing the testimony to be taken, may be presented, in behalf of the party desiring to obtain it, to a justice of the supreme court, or a county judge, with proof, by affidavit, that the testimony of the witness is material to the party. The judge must thereupon issue a subpæna to the witness, commanding him to appear before the commissioner named in the commission; or before a commissioner, within the State, for the State, Territory, or foreign country, in which the notice was given, or the proceeding taken; or before the officer designated in the

TITLE 3.

commission, notice, or other paper, by his title of office; at a time and place specified in the subpæna, to testify in the action, suit, or special

proceeding. Contents of S 916. The place, where the witness is commanded to attend, must subpæna.

be within the county in which he resides or sojourns; or, if it is in another county, not more than forty miles distance from his residence, or

the place of his sojourn. Subpæna, 8 917. Where an action, suit, or special proceeding is pending in a when no commis. court of another State, or of a Territory, or of the United States, and sion is issued.

proof is made, by affidavit, to the satisfaction of a justice of the supreme court, or a county judge, as follows:

1. That a person, residing or sojourning within the state, is a material witness for either party.

2. That a commission, to take the testimony of the witness, has not been issued.

3. That, according to the course and practice of the court, in which the action, suit, or special proceeding is pending, the deposition of a witness, taken as the one applied for is required to be taken, is authorized, to be received in evidence on the trial or hearing.

The judge must issue a subpæna, commanding the witness to appear before him, at a specified time, and at a place within the county in which the witness resides or sojourns, to testify in the action, suit, or

special proceeding, Justice of

8 918. Where proof is made, by affidavit or otherwise, to the satisfacmay sub

tion of a justice of the peace : pæna wit

1. That a civil action, suit, or special proceeding is pending in a court of another State, or of a Territory, or of the United States.

2. That a person, residing or sojourning in the town or city, in which the justice resides, is a material witness for either party,

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 the one applied for is required to be taken, is authorized, to be received in evidence on the trial or hearing.

The justice must issue a subpæna, 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. Taking and 8 919. The officer before whom a witness appears, in a case specified deposition. in this article, must take down his testimony in writing; and must cer

tify and transmit it to the court, in which the action, suit or special

proceeding is pending, as the practice of that court requires. Penalty for 8 920. A person, who fails to appear, at the time and place specified not appear.

in a subpæna, 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 subpænaed to attend the trial of an action in a justices 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.

the peace

ness.

ing.

170

ART. 1.

TITLE IV.

Documentary evidence.

ARTICLE 1. Documentary evidence, as a substitute for oral testimony,

2. Proof of a document executed or remaining within the State.
3. Proof of a document remaining in a court or public office of the United

States, or executed or remaining without the State.

ARTICLE FIRST.

DOCUMENTARY EVIDENCE, AS A SUBSTITUTE FOR ORAL TESTIMONY
SECTION 921. Certain official certificates, evidence.

922. Certificate, etc., on file, evidence.
923. Notary's certificate, evidence.
924. Notary's protest and memorandum; when evidence.
925. Proof of presentment, etc., of foreign bills.
926. Affidavit of printer, etc., evidence.
927. Id.; of service of notice.
928. Marriage certificate, evidence.
929. Book of foreign corporation; when evidence.
980. When a copy thereof is evidence.

931. How copy to be verified. 8 921. Where the officer, to whom the legal custody of a paper Certain of belongs, certifies, under his hand and official seal, that he has made ficial.certi:

. diligent examination, in his office, for the paper, and that it cannot be dence. found, the certificate is presumptive evidence of the facts so certified, as if the officer personally testified to the same. § 922. Where a public officer is required or authorized, by special Certificate;

, provision of law, to make a certificate or an affidavit, touching an act evidence. 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.

S 923. The certificate of a notary public of the State, under his hand Notary's and seal of office, of the presentment by him, for acceptance or pay- evidence. ment, 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.

8 924. In case of the death or insanity of a notary public of the Notary's State, or of his absence or removal, so that his personal attendance, or

protest and his testimony, cannot be procured, in any mode prescribed by law, his dum; when

evidence. 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 payment, therein stated; and a note or memoran

memoran

TITLE 4.

Afidavit of

etc., evi. dence.

tice.

dum, 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 S 925. Proof of the presentment, for acceptance or payment, of a ment, etc., promissory note or bill of exchange, payable in another State, or in a Silforeign Territory, or foreign country, or of a protest of the note or 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 aụthorized by the laws of the State, Territory, or county, where it was payable.

S 926. The affidavit of the printer or publisher of a newspaper, pubprinter,

lished 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. Id.; of ser- S 927. Where it is necessary, upon the trial of an action, to prove the vice of no

service of a notice, an affidavit, showing the service to 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 per

sonal attendance cannot be compelled, with due diligence. Marriage 8 928. An original certificate of a marriage, within the State, made evidence by the minister or magistrate by whom it was solemnized; the original

record thereof, made, pursuant to law, in the office of the clerk of a city or a town, within the State; of a copy of the certificate, or of the record, duly certified, is presumptive evidence of the marriage.

S 929. Where a party wishes to prove an act or transaction of a forforeign

eign corporation, the book or books of the corporation may be used for tion when that purpose, as presumptive evidence, whether any or all of the

parties are or are not members of the corporation. When a S 930. If an original book is not produced at the trial, as prescribed copy there.

in the last section, a copy thereof, or of an entry therein, verified as dence.

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

S 931. The copy must be verified by the deposition, taken as preto be veri- scribed 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.

Book of

corpora

of is evi.

ART. 2.

ARTICLE SECOND.

PROOF OF A DOCUMENT, EXECUTED OR REMAINING WITHIN THE STATE.

SECTION 932. Statutes, etc.; how proved.

933. Copies of records and papers in certain offices, presumptive evidence.
934. Id.; of papers filed with town clerk.
935. Conveyance, when acknowledged, or record, or transcript of record,

evidence.
936. Such evidence may be rebutted.
937. What instruments may be acknowledged.
938. Justice's docket and transcript evidence before him.
939. Transcript from justice's docket, evidence generally.
940. Other proof of proceedings before justice.
941. Charter, ordinances, etc., of cities and villages.

records

8 932. A statute or joint resolution, passed by the Legislature of the Statates, State, may be read in evidence from a newspaper, designated as pre- proved. scribed by law, to publish the same, until six months after the close of the session at which it was passed; and at any time, from a volume printed under the direction of the Secretary of State.

8 933. A copy of a paper filed, kept, entered, or recorded, pursuant Copies of to law, in a public office of the State, the officer having charge of which

and papers has, pursuant to law, an official seal; or with the clerk of a court of the in certain State; or with the clerk or secretary of either house of the Legislature, sumptive or of any other public body or public board, created by authority of a

evidence. of the State, and having, pursuant to law, a seal; or a transcript from a record, kept, pursuant to law, in such a public office, or by such a clerk or secretary, is evidence, as if the original was produced. But to entitle it to be used in evidence, it must be certified by the clerk of the court, under his hand and the seal of the court; or by the officer having the custody of the original; or by his deputy or clerk, appointed pursuant to law; or by the presiding officer, secretary, or clerk of the public body or board, appointed, pursuant to law, under his hand, and, except where it is certified by the clerk or secretary of either house of the Legislature, under the official seal of the body or board.

§ 934. A copy of a paper filed, pursuant to law, in the office of a Id.; of patown clerk, or a transcript from a record kept therein, pursuant to law, peris filed certified by the town clerk, is evidence, with like effect as the original. clerk.

§ 935. A conveyance, acknowledged or proved, and certified, in the Convey manner prescribed by law, to entitle it to be recorded in the county ange, when where it is offered, is evidence, without further proof thereof. Except edged, or as otherwise specially prescribed by law, the record of a conveyance, transcript duly recorded, within the State, or a transcript thereof, duly certified, of record, is evidence, with like effect as the original conveyance. 8 936. The certificate of the acknowledgment, or of the proof of a such evi.

dence may conveyance, or the record, or the transcript of the record, of such a conveyance, is not conclusive ; and it may be rebutted, and the effect ted. thereof may be contested, by a party affected thereby. If it appears that the proof was taken upon the oath of an interested or incompetent witness, the conveyance, or the record or transcript thereof, shall not be received in evidence, until its execution is established by other competent proof.

8 937. Any instrument, except a promissory note, a bill of exchange, What inor a last will, may be acknowledged, or proved, and certified, in the struments

.

be rebut

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