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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.

From Id., § 44.

Am'd by ch. 416 of 1877 and ch. 587 of 1900.

855. Penalty for disobeying subpoena; warrant for witness.

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.

From Id., §§ 45, 46.

Am'd by ch. 416 of 1877 and ch. 542 of 1879.

856. When witness to be imprisoned.

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.

From Id., § 47.

Am'd by ch. 542 of 1879. 1

See § 876.

§ 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.

From Id., § 48.

See § 876.

§ 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.

From Id., § 49.

See § 876.

§ 859. Qualification of preceding sections.

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.

From Id., § 50.

§ 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. From Id., § 51.

§ 861. When to be discharged from arrest.

The court from which a subpœna, 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.

From Id., § 52.

862. By whom witness 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.

From Id., § 53.

Am'd by ch. 416 of 1877, and ch. 946 of 1895.

§ 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.

From Id., § 54.

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

From Id., § 55.

Am'd by ch. 416 of 1877.

§ 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 subpoena. 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 the transcript, is necessary.

From ch. 129 of 1838.

Am'd by ch. 946 of 1895.

§ 867. Production, etc., of book of account.

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.

Am'd by ch. 416 of 1877, and ch. 542 of 1879.

§ 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.

See rule 14 (Sup. Ct.).

ch. 9, tit. 2.

§ 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 sixty-six 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.

SEC. 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. Deposition of prisoner.

878. Proceedings upon such application; new order. [Repealed.]

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. Deposition of a party, etc.

The deposition of a party to an action pending in a court of record cr 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.

From Co. Proc. $$ 390, 391, 392, 397.

Am'd by ch. 416 of 1877, and ch. 299 of 1878.

See rule 82 (Sup. Ct.).

§ 871. Deposition of a witness not a party.

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 eighteenth or nineteenth of section two of this act, or to a person who sixteenth, seventeenth, 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.

From 2 R. S. 391,398, Part 3, ch. 7, tit. 3, portions of §§ 1, 2, 33 and 34 (2 Edm. 407, 414, 415).

Am'd by ch. 416 of 1877.

See rule 82 (Sup. Ct.)

See § 1369, Consol. Act.

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