3. To require attendance out of court before a judge, justice, or other officer, authorized to administer oaths in a special proceeding, under the authority of this state, and pending in court, it is issued by the judge, justice, or other officer, before whom the attendance is required:

4. To require attendance before a commissioner, appointed to take testimony, by a court of any other state, or country, or before a judge, justice or other person, in any other case allowed by law, it may be issued by a judge of the supreme court, or by a county judge or justice of the peace, in places within their respective jurisdictions.

§ 1997. Any party or attorney of a party, in an action, or special proceeding pending in court, may at any time, issue in the name and on behalf of the court, as many subpoenas for witnesses within the state, pursuant to subdivisions 1 and 2 of the last section, as may be required by such party. Every judge, justice, or other officer, authorized by subdivisions 3 and 4 of the last section to issue subpoenas, may on the application of any party, and such proof, as this code requires in the particular case, issue subpoenas signed by such judge, justice, or other officer, with his name of office for such witnesses, as the party reasonably requires.

§ 1798. The service of a subpoena is made, by showing the original, and delivering a copy or a ticket, containing its substance, to the witness personally, giving or offering to him at the same time, the fees to which

he is entitled, for travel to and from the place designated, and one day's attendance there. Such service must be made, so as to allow the witness a reasonable time, for preparation and travel to the place of attendance.

§ 1799. If a witness be concealed in a building or vessel, so as to prevent the service of a subpœna upon him, the court or officer issuing the subpoena, may, upon proof by affidavit, of the concealment, and of the materiality of the witness, make an order, that the sheriff of the county serve the subpoena, and the sheriff must serve it accordingly, and for that purpose may break into the building or vessel, where the witness is concealed.

§ 1800 A witness is not obliged to attend for examination upon a deposition, or for cross-examination upon an affidavit, in any other county than that of his residence, or where he is served with the subpoena; nor is a witness obliged to attend for oral examination, before a court or judge out of the county where the witness resides, or is served with the subpoena; except that in case of an action or special proceeding pending in court, a judge thereof, or a judge of the supreme court, or a county judge, upon an affidavit of a party, or his attorney, shewing that the testimony of the witness is material and his attendance necessary, may endorse on the subpoena an order for the attendance of the witness; in which case, the service of such subpoena and

order, and the payment of double fees to the witness, are sufficient to require his attendance, in the same manner as if he resided in the county.

§ 1801. A person present in court, or before a judicial officer, may be required to testify, in the same manner, as if he were in attendance upon a subpœna, issued by such court or officer.

§ 1802. Disobedience to a subpoena, or a refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt, by the court or officer issuing the subpœna, or requiring the witness to be sworn; and if the witness be a party, his complaint, answer or reply may be stricken out.

§ 1803. A witness disobeying a subpoena shall also forfeit to the party aggrieved the sum of fifty dollars, and all damages which he may sustain, by the failure of the witness to attend; which forfeiture and damages may be recovered in a civil action.

§ 1804. In case of the failure of a witness to attend, the court, or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the sheriff of the county, to arrest the witness, and bring him before the court or of ficer where his attendance was required.

§ 1805. Every warrant of commitment, issued by a court or officer, pursuant to this chapter, must specify therein particularly the cause of the commit:nent, and if it be for refusing to answer a question, such question must be stated in the warrant. And every warrant to arrest, or commit a witness, pursuant to this chapter, must be directed to the sheriff of the county, where the witness may be, and must be executed by him in the same manner as process issued by the supreme

court.

§ 1806. If the witness be a prisoner, confined in a prison within this state, an order for his examination in the prison upon deposition, or for his temporary removal and production, before a court or officer, for the purpose of being orally examined, may be made, as follows:

1. By the court itself, in which the action or special proceeding is pending, unless it be a justice's court:

2. By a judge of the supreme court, or county judge of the county, where the action or proceeding is pending, if pending in a justice's court, or before a judge, or other person out of court.

§ 1807. Such order can only be made on the motion of a party, upon affidavits, showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.

§ 1808. If the witness be imprisoned in the county where the action or proceeding is pending, and for a cause other than a sentence for felony, his production may be required. In all other cases, his examination must be taken upon deposition.

CHAPTER III.

MANNER OF PRODUCTION.

ARTICLE I. Mode of taking the testimony of witnesses.

§ 1809. The testimony of witnesses is taken in three modes:

1. By affidavit:

2. By deposition:

3. By oral examination.

§ 1810. An affidavit is a written declaration under oath, made without notice to the adverse party.