is required, is a subpoena. It is a writ directed to the sheriff, requiring him to summon the person nained therein, to attend at a particular time and place, to testify as a witness. It may, when the court or the judge thereof so directs, require the witness to bring with him any book, writing, or other thing under his control, which he is bound by law to pro-. duce in evidence. 1851. How the attend ance of witness es are procured. Clerk may is. sue subpoena for § 491. Where the attendance of the witness is required before the court, or on the trial of an issue ordered by it, witnesses. or before a commissioner directed to take evidence, the subpœna shall be issued by the clerk on the request of either party. Officer authorized positions may issue subpæna. 492. Where the attendance of the witness is required for the purpose of giving his deposition, the subpoena shall to take debe issued by an officer authorized to take the deposition. § 493. The service of a subpoena is made by showing the original, and delivering a copy or a ticket containing the is served. substance thereof to the witness. How a subpoena By whom a served. § 494. A subpoena may be served by the sheriff, jailer, coroner, or any constable of the county, whose return there- subpoena may be on shall be proof of the service; it may also be served by any white person of full age, whose affidavit indorsed thereon shall be proof of the service, or the witness may acknowledge service in writing on the subpoena. § 495. A witness shall not be obliged to attend for examination on the trial of a civil action, except in the county of his residence or an adjoining county; nor to attend to give his deposition out of the county where he resides, or where he may be when the subpoena is served on him. § 496. Disobedience of a subpoena, or a refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully ordered, may be punished as a contempt of the court or officer by whom his attendance or testimony is required. Witness can not be compell yond an adjoin. ing county. ed to attend be. Disobedience to a subpoena may be punished. Witness liable, continuance. § 497. Where a witness is brought before a court for contempt by disobedience of a subpoena, if it is shown that to pay costs of the legal fees for travel and one days' attendance were paid or tendered to him when the subpoena was served, and that he failed to attend without reasonable cause, the court may summarily order him to pay to the party, on whose behalf he was summoned, the costs occasioned to him by the disobedience of the subpoena, not exceeding twenty dollars, besides being liable for any damages occasioned by the failure to attend. Warrant may rest witness. § 498. Where a witness fails to attend in obedience to a subpoena, the court or officer before whom his attendance he issued to alwas required, may issue a warrant for arresting and bringing him before the court or officer, at a time and place to be fixed in the warrant, to give his testimony, and answer for the contempt. If the warrant is not for immediately bringing the witness before the court or officer, a sum shall 1851. Witness may prisoned for cOLtempt. be fixed in which the witness may give bond with surety for his appearance; and, if no sum is fixed by the court or officer, it shall be one hundred dollars. § 499. The punishment for the contempt mentioned in section four hundred and ninety-six, shall be by fine, not be fined and im exceeding thirty dollars, and imprisonment, not exceeding twenty-four hours. But in the case of refusal by the witness to testify or be sworn, or to give a deposition, he shall continue to be imprisoned so long as he refuses; and, if the court finally adjourns before he submits, he shall remain imprisoned until the next term. The final disposition of the case in which he so refuses, shall discharge him from imprisonment. Witness im prisoned may be released by the county judge. Warrant of $500. A witness so imprisoned or fined by an officer before whom his deposition is being taken, may apply to the presiding judge of the county court, who shall have power to discharge him, if it appears that his imprisonment is illegal. § 501. Every warrant of commitment to prison issued by a court or officer pursuant to this chapter, must specify parcommitment ticularly the cause of the commitment; and, if it is for remust specify of fusing to answer a question, such question must be stated. in the warrant. And every warrant to arrest or commit a witness must be directed to the sheriff of the county where he may be, and executed in the same manner as process from the court. directed. Person confined in prison, other felony, may be than sentence of produced for examination. Prisoner must § 502. A person confined in any prison in this state for any other cause than a sentence for felony, may, by order of court, be required to be produced for oral examination in the county where he is imprisoned; but in all other cases, his examination must be taken by deposition. § 503. While a prisoner's deposition is being taken, he shall remain under the control of the officer having him in be under control custody, who shall afford reasonable facilities for the taking of the deposition. of officer during examination. Witness can not be sued out of his county. § 504. A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county while going, returning, or attending in obedience to a subpoena. CHAPTER 3. Mode of taking the testimony of witnesses. ART. 1. Affidavit. The several modes of taking testimony. 2. Deposition. § 505. modes: 3. General rules of examination. The testimony of witnesses is taken in three 1. By affidavit. 2. By deposition. 3. By oral examination. § 506. An affidavit is a written declaration under oath, made without notice to the adverse party. § 507. A deposition is a written declaration under oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine; or, upon written interrogatories. 1851. Affidavit. Deposition. Oral examina. § 508. An oral examination, is an examination in the presence of the tribunal which is to decide the fact or act tion. upon it, the testimony being heard by the tribunal from the lips of the witness. ARTICLE I. Affidavit. § 509. An affidavit may be read to verify a pleading, to prove the service of a summons, notice, or other process in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or a warning order, or upon a motion, and in any other case permitted by law. § 510. Where a provisional remedy is granted upon an affidavit, and a motion is made to discharge or vacate it, the party against whom it is granted may, by written notice to the party by whom it was obtained, or by order or rule of court, require the production of the person who made the affidavit for cross-examination; whereupon, the party notified shall produce the affiant within ten days before an officer authorized to take depositions, at a time and place of which he shall give the adverse party three days' notice. If the affiant is not produced, his affidavit shall be suppressed; and if produced, he may be examined by either party. § 511. An affidavit may be made out of this state before a commissioner appointed by the governor of this state to take depositions, or before a judge of a court, mayor of a city, notary public, or justice of the peace, whose certificate shall be proof of the time and manner of its being made. § 512. An affidavit may be made in this state before a judge of a court, a justice of the peace, notary public, an examiner, or a clerk of a court. Wherever, by the provisions of this code, the affidavit of the plaintiff or defendant is required to verify a pleading, to obtain a warning order, a provisional remedy, or any other order in an action, or on a motion or proceeding therein, it may, unless otherwise expressed, be made by the agent or attorney of the party, if he is absent from the county, in which case the affidavit shall state his absence, and that the affiant is his agent or attorney. § 513. Every affidavit shall be subscribed by the affiant, and the certificate of the officer before whom it is made, shall be written separately, following the signature of the affiant. 1851. ARTICLE II. SUBDIVISION 1. When to be used. 2. Officers authorized to take depositions. 4. Exceptions to depositions. 5. Depositions to be used in other states, SUSDIVISION I.. When to be used. § 514. Depositions may be used on the trial of all issues Depositions and upon all motions in actions by equitable proceedings, may be used on certain issues. Depositions of certain persons may be used in all cases. In what cases witnesses shall not be bound to attend in court. When parties may commence taking deposi tions. except where the court otherwise directs on an issue tried by a jury. § 515. They may be used on the trial of all issues in any action in the following cases: 1. Where the witness does not reside in the county where the action is pending, or in an adjoining county, or is absent from the state. 2. Where the witness is the governor, secretary of state, register, auditor, or treasurer of this state, a judge or clerk of a court, a president, cashier, teller, or clerk of a bank, a practicing physician, surgeon, or lawyer, or keeper, officer, or guard of the penitentiary. 3. Where, from age, infirmity, or imprisonment, the witness is unable to attend court, or is dead. § 516. A witness shall not be compelled to attend in court for oral examination, where his deposition may be used unless he has failed, when duly summoned, to appear and give his deposition. § 517. The plaintiff may commence taking depositions immediately after the service of the summons; and the defendant, immediately after filing his answer. § 518. A party may take the deposition of any witness Testimony may de bene esse, which may be used under the circumstances prescribed in section five hundred and fifteen. be taken de bene esse. be appointed in each county. SUBDIVISION II. Officers authorized to take depositions. § 519. The circuit judges shall appoint two, and not more Examiners to than four, examiners in each county of their respective districts, who, before acting shall be sworn in open court to discharge faithfully and impartially the duties of their office. § 520. An examiner's office shall be kept in or near the Where exam county seat; and if there is more than one, the others at such place as the court may direct. iner's office to be kept. § 521. There shall not be more than three examiners' ofThe number of fices in a county, nor more than two examiners to each of offices in each county. fice. § 522. All depositions taken in this state to be used in the courts thereof, shall be taken before an examiner, except 1851. Depositions must be taken before an exam 1. Where an examiner cannot be obtained in the iner except, &c. county in which the deposition is to be taken. 2. Where the witness is unable, from age, infirmity, or imprisonment, to attend at the examiner's office, and the examiner refuses to go to him. 3. Where all the examiners of the county are interested in the action. § 523. In the cases mentioned in the exceptions to the last section, the depositions may be taken before a judge of a court, a justice of the peace, a notary public, or a clerk of a court. In the except ed cases may be circuit judge, &c taken before a The cause of its being so ta § 524. Where a deposition is taken before any other officer than an examiner, the cause of it being so taken shall ken to be stated. be made to appear by an accompanying affidavit. Examiner not bound to go out § 525. It shall not be the duty of an examiner to go out of his office to take depositions, but he may take them at of his office. any place in the county for which he is appointed. $526. Depositions may be taken out of this state before a commissioner appointed by the governor thereof, a judge of a court, a justice of the peace, mayor of a city, notary public, or any other person empowered by a commission. directed to him by consent of the parties, or by order of the court. SUBDIVISION III. Manner of taking depositions. § 527. Depositions shall be taken upon reasonable notice to the adverse party, or upon interrogatories. § 528. The notice must be in writing, signed by the party giving it, or his attorney, addressed to the party on whom it is to be served, and specify the time and place of taking the deposition, and the action or proceeding in which it is to be used. Before whom depositions may the state. be taken out of Must be by notice or on interrogatories. Notice must be in writing and served. How served § 529. Where the notice is to be given to the defendant, it may be served as the summons in the action is authorized on defendant. to be served. § 530. A notice shall be deemed reasonable that allows one day for each thirty miles of distance which the party will have to travel, and one day for preparation where the distance is less than one hundred miles, and two days where it is more. Must be reasonable. Taking may be other day. § 531. Where a notice has been given to take a deposition at an examiner's office, but the attendance of the wit- adjourned to anness cannot be procured, owing to his age, infirminty, or imprisonment, the taking of the deposition may be adjourned to the next day, and to some other convenient place-a written notice of which shall be posted upon the front door of the examiner's office before noon of the day on which the deposition was to have been taken. |