JUSTICE'S MANUAL except in cases of the most urgent necessity, to require a party, at the mere pleasure of his adversary, and still more unjust to require an indifferent witness, upon the demand of a litigant, to produce his private account books, often to his great inconvenience, and the derangement of his business. Such production is frequently required by a subpoena duces tecum, couched in language so general that its mandates can be obeyed, only by bringing into court large numbers, sometimes a wagon load, of books, but few of which can possibly be of any service. It is also believed that a subpoena duces tecum is sometimes used by a party, for the mere purpose of annoying his adversary. The provisions, respecting the discovery of books and papers, are ample, to enable a party to ascertain what books are needed, and to show the necessity of their production, upon an application under this section.] Books, etc., of corporation, how § 868. The production, upon a trial, of a book or paper, belonging to or under the control of a corporation, may be compelled, in produced. 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. When per sonal attend ance not required by subpœna duces tecum. [New. It is generally understood that the books, etc., of a corporation cannot be reached by a subpoena duces tecum, whether the corporation is or is not a party. Bank of Utica v. Hillard, 5 Cow., 153; S. C., id., 419; La Farge v. La Farge Ins. Co., 14 How. Pr., 26. No solid reason is perceived for the preservation of such an inconvenient and anomalous rule, which rests upon a technicality.] § 869. 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. [New. See the note to the last section.] 226 TITLE III. ARTICLE SECOND. DEPOSITIONS, TAKEN WITHOUT THE STATE, FOR USE WITHIN THE STATE. PART II. positions taken . $900.* Upon the examination of a witness, without written inter- How derogatories, by virtue of a commission, or of an order to take depositions, the commissioner, or the person before whom the deposition is taken, must take down, or cause to be taken down, as prescribed in the next section, the substance of the witness's testimony; unless he is directed, in the commission or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers, word for word. Unless the commission or order otherwise directs, the person, appearing for either party, may ask any question, which he deems proper, and the witness's answer must be taken accordingly, the objections thereto being reserved, without being specified at the time of examination. A copy of this section must be annexed to each commission to take testimony without written interrogatories, and to each certified copy of an order to take a deposition.(^) [New.] * sion or take § 901. The person, to whom a commission is directed, or before Commis whom a deposition is taken, unless otherwise expressly directed in order to the commission, or in the order for taking the depositions, must exe- tions; cute the commission, or the order, as follows: 1. He must publicly administer, to each witness examined, an oath or affirmation to testify the truth, the whole truth, and nothing but the truth, as to the matters respecting which the witness is to be examined. 2. He must reduce the examination of each witness to writing, or cause it to be reduced to writing, by a disinterested person. After it has been carefully read, to or by the witness, it must be subscribed by the witness. deposi how executed and returned. 227 JUSTICE'S Certificate of execu 3. If an exhibit is produced and proved, the exhibit, or, if the witness, or other person having it in his custody, does not surrender it, a copy thereof, must be annexed to the deposition to which it relates, subscribed by the witness proving it, and numbered or otherwise identified, in writing thereupon, by the commissioner, or person taking the deposition, who must subscribe his name thereto. 4. The commissioner, or person taking the deposition, must subscribe his name to each half sheet of the deposition; he must annex all the depositions and exhibits to the commission, or to a certified copy of the order for taking the deposition, with the certificate specified in the next section; and he must close them up under his seal, and address the packet to the clerk of the court, at his official residence. 5. If there is a direction, on the commission, or in the order, to return the same through the post-office, he must immediately deposit the packet, so addressed, in the post-office, and pay the postage thereon. 6. If there is a direction, on the commission, or in the order, to return the same by an agent of the party, at whose instance it was issued or granted, the packet so addressed must be delivered to the agent. 7. Where a commission is directed to two or more persons, one or more of them may execute it, as prescribed in this and the next section. A copy of this and of the next section must be annexed to each commission, or order to take depositions, authorized by this article.(*) [From § 16 of the R. S., and §§ 6, 7, and 8 of the act of 1853.] $902. The commissioner or other person, before whom one or tion. more depositions are taken, must subscribe, and annex to each deposition, a certificate, substantially in the following form, the blanks being properly filled up: and after being sworn" (or "affirmed," as the case may be), "to testify the truth, the whole truth, and nothing but the truth, did depose to the matters contained in the foregoing deposition, and did, in my presence, subscribe the same, and indorse the exhibits annexed thereto. And I further certify that I have subscribed my name to each halfsheet thereof, and to each exhibit. And I further certify that PART II. § 903. The certificate, specified in the last section, is a sufficient Certificate, return to a commission.(*) [New; prepared for the purpose of abrogating the technical rule that a return on the back of the commission is also required.] a sufficient return. tion, etc., § 911. A deposition, taken and returned as prescribed in this Deposi article, or an exemplified copy thereof, if the original is filed in evidence. another county, may, unless it is suppressed as prescribed in the last section, be read in evidence by either party. It has the same effect, and no other, as the oral testimony of the witness would have; and an objection to the competency or credibility of the witness, or to the relevancy, or substantial competency, of a question put to him, or of an answer given by him, may be made, as if the witness was then personally examined, and without being noted upon the deposition.(2) [Section 13 of the act of 1853, and § 23 of the R. S.; with amendments, designed to make the section correspond to changes made in previous sections. The first and last clauses of the second sentence are new.] ARTICLE THIRD. DEPOSITIONS, TAKEN WITHIN THE STATE, FOR USE WITHOUT THE STATE. § 918. Where proof is made, by affidavit or otherwise, to the Justice of satisfaction of a justice of the peace: 1. That a civil action, suit, or special proceeding is pending in a court of another state, or of a territory, or of the United States. 2. That a person, residing or sojourning in the town or city, in which the justice resides, is a material witness for either party. 229 the peace may subpœna witness. JUSTICE'S Taking and return tion. 3. That, according to the practice of the court, in which the action, suit, or special proceeding is pending, the deposition of a witness, taken as prescribed in this section, and the next section, will be received on the trial or hearing. The justice must issue a subpoena, commanding the witness to appear before him, at a specified time, and at a place within the town or city, in which the witness resides or sojourns, to testify in the action, suit or special proceeding. [L. 1831, ch. 191, § 1 (3 R. S., 5th ed., 680; 4 Edm., 637), with like amendments. The reference, in sub. 1, to territorial courts, and courts of the United States, is new.] § 919. The officer, before whom a witness appears, in a case speciof deposi- fied in this article, must take down his testimony in writing; and must certify and transmit it to the court, in which the action, suit or special proceeding is pending, as the practice of that court requires. [Id., § 2, amended so as to apply to all cases under this article.] Penalty for not § 920. A person, who fails to appear, at the time and place speciappearing. fied in a subpoena, issued as prescribed in this article, and duly served upon him; or to testify; or to subscribe his deposition, when correctly taken down; is liable to the penalties, which would be incurred in a like case, if he was subpoenaed to attend the trial of an action in a justice's court; and, for that purpose, the officer, before whom he is required to appear, possesses all the powers of a justice of the peace upon a trial. [Id., § 3.] Certain official certifi cates, evidence. TITLE IV. ARTICLE 1. Documentary evidence, as a substitute for oral testimony. ARTICLE FIRST, DOCUMENTARY EVIDENCE, AS A SUBSTITUTE FOR ORAL TESTIMONY, 921. Where the officer, to whom the legal custody of a paper belongs, certifies, under his hand and official seal, that he has made |