ART. 6. ing summons on witnesses. thereby; and shall forfeit to the aggrieved party the sum of fifty dollars, in addition to such damages, to be recovered in a separate action, or in the same action commenced for the recovery of such damages.23 $ 44. In all cases where by the provisions of law any judge or oth- Mode of server officer, is authorised to summon any person to appear as a witness, either before such judge or officer, to give testimony or to have his deposition taken, or before any persons named in any commission issued by a court of any other state or country, to take testimony, such summons shall be served by, 1. Showing to the witness the original summons, under the hand of the judge or officer issuing the same: 2. Delivering to such witness a copy of the summons, or a ticket containing its substance: and, 3. Paying or tendering to such witness the fees allowed by law for travelling to and returning from the place where he is required to attend, and the fee allowed for one day's attendance. disobeying $45. Every person who shall be duly summoned to attend before Penalty for any judge or officer, or before any commissioner, as above provided, shall be bound to attend according to such summons; and for every failure so to attend, without a reasonable excuse, shall be responsible to the aggrieved party for the loss and hindrance sustained by such failure, and for all other damages sustained thereby, and shall forfeit to such aggrieved party fifty dollars in addition to such damages. witness. $ 46. In case of the failure of any witness so to attend as above pro- Warrant for vided, the judge or officer issuing the summons, upon due proof of the service thereof, and of the failure of such witness, shall issue his warrant to the sheriff of the county to apprehend such witness and bring him before such judge or officer to be examined, or to bring him before any persons named in a commission issued by a court of any other state or country to take testimony, for the like purpose.24 $47. If any witness attending before any judge, officer or com- when to be missioners, pursuant to a summons, or brought before them, or either imprisoned. of them, shall, without reasonable cause, refuse to be examined, or to answer any legal and pertinent question, or to subscribe his deposition after the same has been reduced to writing, the officer issuing such summons shall, by warrant, commit such witness to the common jail of the county in which he resides, there to remain until he submits to be examined, or to answer, or to subscribe his deposition, as the case may be, or until he be discharged according to law.24 warrant. $48. Every warrant of commitment issued by any judge or officer, Contents of pursuant to the provisions of this Article, shall specify therein particularly the cause of such commitment; and if such commitment be for refusing to answer any question, such question shall be stated in the warrant. TITLE 3. $49. Every warrant to apprehend or commit any witness, authorised by this Article, shall be directed to the sheriff of the county rected, &c. where such witness may be, and shall be executed by him in the same manner as process issued by courts of record. To whom di Qualification of preceding sections. Witnesses exempt from arrest. To be discharged from arrest. Ib. Arrests void. artesting. $ 50. The preceding sections of this Article shall not apply to subpoenas issued by justices of the peace, nor to witnesses summoned to attend courts held by justices of the peace, nor to any other case where special provision is made by law for compelling the attendance of witnesses. $51. Every person duly and in good faith subpoenaed as a witness to attend any court, officer, commissioner or referee, or summoned to attend any judge, officer or commissioner, in any case where the attendance of such witness may by law be enforced by attachment, or by commitment, shall be exonerated from arrest in any civil suit, while going to the place where he shall be required by such subpoena to attend, while remaining at such place, and while returning therefrom. S52. The court or officer before whom any person shall have been, in good faith, subpoenaed to attend as a witness, shall discharge such witness from any arrest made in violation of the last section; and if such court shall have adjourned before such arrest was made, or before application for such discharge be made, any judge of such court shall have the same power to discharge such witness. $ 53. Every officer authorised to perform the duties of supreme court commissioner, and the first judges of county courts, shall have the like authority to discharge any witness arrested contrary to the foregoing provisions. S54. Every arrest of a witness made contrary to the foregoing provisions, shall be absolutely void, and shall be deemed a contempt of Penalties for the court issuing the subpœna; and every person making such arrest, shall be responsible to the witness arrested for three times the amount of the damages which shall be found by the jury, and shall also be liable to an action at the suit of the party who subpoenaed such witness, for the loss, hindrance and damages sustained by him, in consequence of such arrest. Not to be lia $55. But no sheriff or other officer or person shall be so liable, ble unless af- unless the person claiming an exemption from arrest, shall, if required by such sheriff or officer, make an affidavit, stating: fidavit be made, &c. 1. That he has been legally subpoenaed as a witness to attend before some court or officer, specifying such court or officer, the place of attendance, and the cause in which he shall have been subpoenaed; and, 2. That he has not been subpoenaed by his own procurement, with the intent of avoiding the service of any process: Which affidavit may be taken by such officer, and when so taken, shall exonerate such officer from all liability for not making such ar rest. ART. 7. ARTICLE SEVENTH. Of Documentary Evidence, and the Preservation thereof. SEC. 56. Affidavits of publishing notices, how made and filed. 57. Also of notices of sale of real estate. 58. Effect of such affidavits, &c. as evidence. 59. Copies of proceedings, records, &c. how to be certified; seal of county clerks. 61. Seals of courts, &c. may be impressed on paper. 62. Private seals to be on wafer, or wax, &c. 63. Clerks, &c. to receive papers offered for safe keeping. 64. Papers, how to be endorsed, filed and kept. 65. Not to be delivered out, except in certain cases. 66. But open to public examination. 67. Certain officers to receive wills, for safe keeping. 68. Will how to be enclosed and endorsed; not to be opened, &c. 69. To whom will to be delivered. 70. Surrogate to open will on death of testator, &c. publishing $56. When notice of any application to any court or judicial offi- Affidavits of cer for any proceeding authorised by law, is required to be published notices. in one or more newspapers, an affidavit of the printer of such newspaper, or of his foreman or principal clerk, annexed to a printed copy of such notice taken from the paper in which it was published, and specifying the times when, and the paper in which such notice was published, may be filed with the proper officer of the court, or with the judicial officer before whom such proceeding shall be pending, at any time within six months after the last day of the publication of such notice. $57. When any notice of a sale of real property is required by rb. of sales of law to be published in any newspaper, an affidavit of the printer of real estáto. such paper, or of his foreman or principal clerk, annexed to a printed copy of such notice taken from the paper in which it was published, and specifying the times when, and the paper in which such notice was published, may be filed at any time within six months after the last day of such publication, with the county clerk of the county in which the premises sold are situated; or if such sale were made in pursuance of the order of any surrogate or court of equity, such affidavit may be filed with such surrogate, or with the clerk of such court, as the case may be. $58. The original affidavits so filed pursuant to the two last sections, and copies thereof duly certified by the officer in whose custody the same shall be, shall be presumptive evidence in all cases, and before every court, of the facts contained in such affidavit. To be evidence. $ 59. Whenever a certified copy of any affidavit, record, docu- Copies of ment, or other paper, is declared by law to be evidence, such copy &c. how cershall be certified by the clerk or officer in whose custody the same is proceedings, tified, TITLE 3. required by law to be, to have been compared by him with the original, and to be a correct transcript therefrom, and of the whole of such original; and if such officer have any official seal by law, such Seal of coun- certificate shall be attested by such seal; and if such certificate be ty clerks. Last section qualified. Seals of courts, &c. may be stamped. Private seals to be on wa fer, &c. Papers offer ed for safe given by the clerk of any county, in his official character as such clerk, it shall be attested by the seal of the court of common pleas of the county of which he is clerk. $60. But the last section shall not be construed to require the af fixing of the seal of any court to any certified copy of any rule or order made by such court, or of any paper filed therein, when such copy is used in the same court, or before any officer thereof; nor to require the seal of the supreme court to be affixed to a certified copy of any rule or order of that court, when used in any circuit court. $61. In all cases where a seal of any court, or of any public officer, shall be authorised or required by law, the same may be affixed by making an impression directly on the paper, which shall be as valid as if made on a wafer or on wax. $62. But the last section shall not extend to private seals, which shall be made as heretofore, on wafer, wax, or some similar substance. $ 63. The clerk of every county in this state, and the register of keeping, to deeds in the city and county of New-York, upon being paid the fees allowed therefor by law, shall receive and deposit in their offices respectively, any deeds, conveyances, wills, or other papers or documents, which any person shall offer to them for that purpose; and shall give to such person a written receipt therefor. be received. How to be endorsed and kept. Not to be delivered out, &c. May be examined pub licly. Wills to be received for $64. Such instruments, papers and documents, shall be properly endorsed, so as to indicate their general nature and the names of the parties thereto, shall be filed by the officer receiving the same, stating the time when received, and shall be deposited and kept by him and his successors in office, with his official papers, in some place separate and distinct from such papers. $ 65. The instruments, papers and documents so received and deposited, shall not be withdrawn from such office, except on the order of some court of record, for the purpose of being read in evidence in such court, and then to be returned to such office; nor shall they be delivered without such order, to any person, unless upon the written order of the person or persons who deposited the same, or their executors or administrators. $ 66. Such instruments, papers and documents so deposited, shall be open to the examination of any person desiring the same, upon payment of the fees allowed by law. $67. The clerk of every county in this state, the register of deeds safe keeping in the city and county of New-York, and the surrogate of every county, upon being paid the fees allowed therefor by law, shall receive and deposit in their offices respectively, any last will or testament ART. 8 which any person shall deliver to them for that purpose, and shall give a written receipt therefor to the person depositing the same. sealed up, &c. $68. Such will shall be enclosed in a sealed wrapper, so that the Will to be contents thereof cannot be read, and shall have endorsed thereon the name of the testator, his place of residence, and the day, month and year when delivered; and shall not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same, as herein after directed. $69. Such will shall be delivered only, 1. To the testator in person: or, 2. Upon his written order, duly proved by the oath of a subscribing witness: or, 3. After his death, to the persons named in the endorsement on the wrapper of such will, if any such endorsement be made thereon: or, 4. If there be no such endorsement, and if the same shall have been deposited with any other officer than a surrogate, then to the surrogate of the county. To whom to be delivered. be opened by $70. If such will shall have been deposited with a surrogate, or Will when to shall have been delivered to him as above prescribed, such surrogate, surrogate,&c. after the death of the testator, shall publicly open and examine the same, and make known the contents thereof, and shall file the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof; or until required by the authority of some competent court to produce the same in such court. ARTICLE EIGHTH. Of the Examination of Witnesses, of certain rules of Evidence, and of Evidence in certain cases. SEC. 71. Witness compelled to answer questions subjecting him to civil suits. 72. Ministers not to disclose confessions. 73. Physicians, &c. not to disclose certain information. 74. Proof respecting loss of instruments. 75 & 76. When recovery may be had on lost notes, &c. 78. Defence to actions on them to be pleaded or notified. 79. Certain mistakes in pleading to be disregarded at trials. answer cer tions. $71. Any competent witness in a cause, shall not be excused Witnesa to from answering a question relevant to the matter in issue, on the tain ques ground merely that the answer to such question may establish, or tend to establish, that such witness owes a debt, or is otherwise subject to a civil suit. But this provision shall not be construed to require a witness to give any answer which will have a tendency to accuse |