§ 842. Before whom oaths and affidavits may be taken. An oath or affidavit, required or authorized by law; except an oath to a juror or a witness upon a trial, an oath of office, and an oath required by law to be taken before a particular officer; may be taken before a judge, clerk, deputy-clerk, or special deputy-clerk, of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the district in which the officer is authorized to act; and when certified by the officer to have been taken before him, may be used in any court, or before any officer or other person.

§ 843. Id.; in special cases. [AMENDED BY CH. 416 OF 1877.] Where an officer, person, board or committee, has been heretofore, or is hereafter authorized by law, to take or hear testimony, or to hear or receive an affidavit, or to take a deposition, in relation to a matter concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee, may administer an oath for that purpose. Where an officer, person, board, or committee, to whom or to which application is made to do an act in an official capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose.

§ 844. Id.; without the State. [AMENDED BY CH. 416 OF 1877.] An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken without the State, except where it is otherwise specially prescribed by law, before an officer authorized by the laws of the State, to take and certify the acknowledgment and proof of deeds, to be recorded in the State; and, 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. General mode of swearing. The usual mode of administering an oath, now practiced, by 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.

§ 846. When kissing the gospels dispensed with. 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. When affirmation to be made. A solemn declaration or affirmation, in the following form, 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."

$848. Other modes of swearing. [AMENDED BY CH. 416 OF 1877.] If the court or officer, before which or whom a person is offered as a witness, 15 satisfied, that any peculiar mode of swearing, in lieu of, or in addition to ying the hand upon and kissing the gospels, is in his opinion, more solemn d obligatory, the court or officer may, in its or his discretion, adopt that de of swearing the witness.

Ch. 9, Tit. 2.

SWEARING A WITNESS; SUBPOENAS.

SS 849-854. $649. Swearing persons not Christians. [AMENDED BY CH. 416 OF 1877.] A person, believing in a religion other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section eight hundred and forty-five or section eight hundred and forty-six of this act.

$850. Court may examine witness. 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. Swearing falsely in any form, perjury. A person swearing, affirming or declaring, in any form, where 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.

TITLE II.

Compelling the attendance and testimony of a witness.

SECTION 852. Mode of serving subpoena 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.

8:0. Witness exempt from arrest.

861. When to be discharged from arrest.

862. By whem witness may be discharged.

863. Arrest, when void; penalty.

864. Sheriff not to be liable, unless affidavit is made.

855. Application of foregoing provisions to judgments.

866. Records not to be removed by virtue of subpœna.

867. Production, etc., of books of account.

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

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

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

1. The original subpoena must be exhibited to 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.

§ 853. Penalty for disobedience. A person so subpoenaed, who fails, without reasonable excuse, to obey the subpoena, or a person who fails, without reasonable excuse, 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 subpœnaed, the court may, as an additional punishment, strike out his pleading.

§ 854. Subpoena to be issued by judge, etc. (AMENDED BY CH. 416 or 1877.] Where a judge, or an arbitrator, referee, or other percon, or a board or committee, has been heretofore, or is hereafter expressly authorized law, to hear, try, or determine a matter; or to do any other act in an offic capacity, in relation to which proofs may be taken, or the attendance of 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 designate

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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.

$855. Penalty for disobeying subpoena; warrant for witness. [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.] A person who is duly subpoenaed, as prescribed in the last section, must obey the subpoena. If he fails so to do, without a reasonable excuse, he is liable, in addition to any other punishment which may be lawfully inflicted therefor, for the damages sustained by the 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.

§856. When witness to be imprisoned. [AMENDED BY CH. 542 OF 1879.] 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. Contents of warrant. 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. To whom directed; how executed. 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. Qualification of preceding sections. The foregoing sections of this title do not apply to a subpoena 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. Witness exempt from arrest. 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 a special proceeding, while going to, remaining at, and returning from, the place where he is required to attend."

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§ 861. When to be discharged from arrest. 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 otner person, from an arrest made in violation of the last section.

§ 862. By whom witnesses may be discharged. A justice of the supreme court, in any part of the state, or a county judge, 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 subpœna, served in good faith upon the person arrested, was issued as prescribed in section eight hundred and fifty-four of this act. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 863. Arrest, when void; penalty. 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. Sheriff not to be liable, unless affidavit is made. [AMENDED BY CH. 416 OF 1877.] But a sheriff, or other officer, or person, is not so liable, 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 subpoenaed, 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.

§ 865. Application of foregoing provisions to judgments. The foregoing provisions of this title, relating to a person required, by an order of a court, to attend, apply, where such an attendance is required by the terms of a judgment.

§ 866. Records not to be removed by virtue of subpona. The record of a conveyance of real property, or any other record, or document, whereof a transcript duly certified may by law be read in evidence, shall not be removed, by virtue of a subpoena duces tecum, from the office in which it is kept; except temporarily, by 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, 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. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 867. Production, etc., of books of account. [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.] A person shall not be compelled to produce, upon a trial or hearing, a book of account, otherwise than by an order

requiring him to produce it, or a subpoena duces tecum. Such a subpoena must be 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.

§ 868. Books, etc., of corporation, how produced. The production, upon a trial, of a book or paper, belonging to 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. 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.

§ 869. When personal attendance not required by subpoena duces tecum. In a case specified in the last section, or where a subpoena duces tecum, or an order, made as prescribed in section eight hundred and sixtysix or section eight hundred and sixty-seven of this act, requires a public officer to attend, and bring a book or paper under his control, the subpoena or order is deemed to be sufficiently obeyed, if the 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 duces tecum clause, must also be served upon him.

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.

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. Punishment for disobeying order.

875. Service of order, etc.

876. Depositions when and where to be taken.

*877. Application to vacate order.

*878. Proceedings upon such application; new order.

$79. 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.

* Stricken out by Ch. 416 of 1877.