862. By whom witness may be discharged 864. Sheriff not to be liable, unless affidavit is made. 868. Books, etc., of corporation, how produced. 869. When personal attendance not required by supœna duces tecum. TITLE 2. § 852. A subpoena, issued out of the court, to compel the attendance of Mode of serving a witness, and, where the subpoena so requires, to compel him to bring subpaña 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, disobe 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. to be issued § 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 for wit § 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 rea- subpoena; sonable excuse, he is liable, in addition to any other punishment which warrant may be lawfully inflicted therefor, for the damages sustained by the ness. 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 person issuing the subpoena if he is a judge of a court of record or not of record, or if not, then any judge of such a court, upon proof by affidavit 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 ness to be imprisoned. Contents of warrant. To whom directed; how executed. Qualification of pre ceding sections. Witness exempt from arrest. When to be discharged from arrest. By whom witness may be dis charged. Arrest, when void; penalty. Sheriff not to be lia § 856. If the person subpoenaed and attending or brought as prescribed 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 person issuing the subpoena, if he is a judge of a court of record, or not of record, may forthwith, or if he is not, then any judge of such court may upon proof by affidavit of the facts by warrant commit the offender 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. § 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. § 859. The foregoing sections of this title do not apply to a subpœna issued by a justice of the peace; or to a witness subpoenaed to attend 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. § 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 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. § 862. A justice of the supreme court, in any part of the State, or a 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. § 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 the sheriff or officer an affidavit to the effect that he was legally sub afidavit is e. 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- Applicaquired, by an order of a court, to attend, apply, where such an attend- going proance is required by the terms of a judgment. visions to judgments. removed of subpœ § 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 na. the 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 Produchearing, a book of account, otherwise than by an order requiring him tion, etc., to produce it, or a subpoena duces tecum. Such a subpoena must be account. served at least five days before 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 subpoena 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 § 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 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 pena 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. ! Deposition etc. 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. 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. 874. Subpoena. 875. Service of order, etc. 876. Deposition when and where to be taken. *877. Application to vacate order. *878. Proceedings upon such 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 of a party, record or of a person who expects to be a party to an action about to 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. Deposition of a witness not a party. Applica § 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 record, other than a court specified in subdivision sixteenth, seventeenth, 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. § 872. The person desiring to take a deposition, as prescribed in tion; con- this article, may present to a judge of the court in which the action is tents of affidavit. 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. If an action is pending, the nature of the action and the substance of the judgment demanded, and, if the application is made by the defendant before answer, or by either party after answer, the nature of the defence. 3. If no action is pending, the nature of the controversy which is expected to be the subject thereof. Stricken out. 4. The name and residence of the person to be examined, and that the testimony of such 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; or that any other special circumstances exist, which render it proper that he should be examined as prescribed in this article. 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 that he has an office within the State, where he regularly transacts business in person, specifying the place, and, if it is in a city, the street and street number, or other designation of the particular locality; or, if two or more persons are expected to be adverse parties, that each is of full age, and so resident or sojourning, or has such an office; also the circumstances which render it necessary for the protection of the applicant's rights, that the witness's testimony should be perpetuated. 7. Any other fact, necessary to show that the case comes within one of the last two sections, or relevant to the questions specified in the next section. ART. 1. examina § 873. The judge, to whom such an affidavit is presented, must Order for! grant an order for the examination, if an action is pending: if no tion. action is pending, he must grant it, if there is reasonable ground to believe that an action will be brought, as stated in the affidavit, and that the application is made in good faith to preserve the expected testi mony; otherwise he must dismiss the application. Where the person to be examined is a party to a pending action, or is expected to be a party to an action to be brought, the order may, in the discretion of the judge, designate and limit the particular matters as to which he shall be examined. The order must require the party or person to be examined to appear before the judge, or, except where the person to be examined is a party to a pending action, or is expected to be a party to an action to be brought, 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 Subpoena. 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 subpoena, issued from the court, in which the action is pending; or, if no action is pending, from the court of which the judge is a member. § 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 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. § 876. Upon proof, by affidavit that service of a copy of the order Depostand of the affidavit has been duly made, as directed in the order, the tion, when order, etc. |