TITLE II. Compelling the attendance and testimony of a witness. Sec. 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. 860. Witness exempt from arrest. 861. When to be discharged from arrest. 862. By whom witnesses may be discharged. 863. Arrest, when void; penalty. 864. Sheriff not to be liable unless affidavit is made. 865. Application of foregoing provisions to judgments. 866. Records not to be removed by virtue of subpoena. 867. Production, etc., of book of account. 868. Books, etc., of corporation, how produced. 869. When personal attendance not required by subpoena duces tecum. § 852. Mode of serving subpoena issued out of a court. A subpoena, 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 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 traveling 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. 2 R. S. 400, § 42, with amendments. § 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 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. Id., 43, am'd. § 854. Subpoena to be issued by judge, etc. Where a judge, or an arbitrator, referee, or other person, or a board or committee, has been heretofore, or is hereafter expressly authorized by law, to hear, try, or determine a matter; or to do any 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 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. 2 R. S. 401, § 44, am'd. § 855. [Am'd, 1879.] Warrant for witness. Penalty for disobeying subpoena. 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. Id., §§ 45 and 46, consolidated. § 856. [Am'd, 1879.] 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. Id., § 47, am'd verbally. See 876, post. § 857. Contents of warrant. A warrant of commitment, issued as prescribed in the last seetion, 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. 1d., § 48. See § 876, post. § 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. Id. 402, § 49. See § 876, post. § 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. 2 R. S. 402, § 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 special proceeding, while going to, remaining at, and returning from, the place where he is required to attend. Id., § 51. § 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 other person, from an arrest made in violation of the last section. Id,, 52, am'd. may be dis § 862. [Am'd, 1895.] By whom witnesses charged. 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 subpoena, served in good faith upon the person arrested, was issued as prescribed in section eight hundred and fifty-four of this act. L. 1895, ch. 946. § 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. Id., § 54. § 864. [Am'd, 1877.] affidavit is made. Sheriff not to be liable unless 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. 2 R. S. 402, § 55, am'd. § 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. [Am'd, 1895.] 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. L. 1895, ch. 946. § 867. [Am'd, 1879.] 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. § 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 866 or section 867 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 a duces tecum clause, must also be served upon him. 215 |