Return of war ings on ance. appear executing and delivering to the marshal, at any time before the return day of the warrant, an undertaking, with two sufficient sureties, to the effect that the defendant will appear on such return day, and abide the order or judgment of the court or officer thereupon, or pay, as may be directed, the sum specified in the warrant. SEC. 617. The marshal shall return the warrant of arrest, and the rant, and proceed- undertaking, if any, given him by the defendant, by the return day therein specified. When the defendant has been brought up or has appeared, the court or judicial officer shall proceed to investigate the charge by examining such defendant and witnesses for or against him, for which an adjournment may be had from time to time if necessary. SEC. 618. Upon the evidence so taken the court or judicial officer shall determine whether or not the defendant is guilty of the contempt charged, and if it be determined that he is so guilty, shall sentence him to be punished as provided in this chapter. Determination and sentence. Judgment to in jured. SEC. 619. If any loss or injury to a party in an action or proceeddemnify party in- ing, prejudicial to his rights therein, have been caused by the contempt, the court or judicial officer, in addition to the punishment imposed for the contempt, may give judgment that the party aggrieved recover off the defendant a sum of money sufficient to indemnify him and to satisfy his costs and disbursements, which judgment, and the acceptance of the amount thereof, is a bar to any action or proceeding by the aggrieved party for such loss or injury. When party may be imprisoned. Person also li SEC. 620. When the contempt consists in the omission or refusal to perform an act which is yet in the power of the defendant to perform, he may be imprisoned until he shall have performed it; and in such case the act must be specified in the warrant of commitment. SEC. 621. Persons proceeded against according to the provisions of able to indictment. this chapter are also liable to indictment for the same misconduct, if it be an indictable offense; but the court, before his conviction is had on the indictment, in passing sentence, shall take into consideration the punishment before inflicted. If party do not appear, proceed ings thereon. Appeal from idgment. SEC. 622. When a warrant of arrest has been returned served, if the defendant do not appear on the return day, the court or judicial officer may issue another warrant of arrest, or may order the undertaking to be prosecuted, or both. If the undertaking be prosecuted, and the aggrieved party join in the action, and the sum specified therein be recovered, so much thereof as will compensate such party for the loss or injury sustained by reason of the misconduct for which the warrant was issued shall be deemed to be recovered for such party exclusively. SEC. 623. Either party to a judgment in a proceeding for a contempt may appeal therefrom in like manner and with like effect as from a judgment in an action; but such appeal shall not have the effect to stay the proceeding in any other action or proceeding, or upon any judgment, decree, or order therein concerning which or wherein such contempt was committed. Contempts of justices' courts are punishable in the manner specially provided in the procedure before them. SEC. 624. The process by which the attendance of a witness is Subpoena for required is a subpoena. It is a writ directed to a person and requiring witness defined. his attendance at a particular time and place, to testify as a witness in a particular action, suit, or proceeding therein specified, on behalf of a particular party therein mentioned. It may also require him to bring with him any books, documents, or other things under his control which he is bound by law to produce in evidence. SEC. 625. The subpoena is as follows: First. To require attendance before a court of record, or at the trial of an issue therein, or out of such court in an action, suit, or proceeding pending therein, by the clerk of such court; Second. To require attendance before a commissioner appointed to take testimony by a court of the United States, or any State or Territory, or any foreign country, by any clerk of a court of record, in places within the jurisdiction of such court; Third. To require attendance before the judge, justice of the peace, or other person authorized by law to take the testimony or affidavit of another, by such judge, justice of the peace, or other person, in the places within their respective jurisdiction. SEC. 626. The subpoenas authorized by subdivisions first and second of the last section, upon the request of a party and an attorney of the court, shall be issued by the clerk in blank, and delivered to such party or attorney, who may thereafter fill up such blank with the name of the witness or witnesses that he may desire to be subpoenaed, and cause the same to be served as in this chapter required. Subpoena, how and by whom is sued. Subpoena, when sued in blank. and to whom is Subpoena, how SEC. 627. A subpoena may be served by the party or any other competent person over eighteen years of age. The service is made by served. reading and showing the original and delivering a copy 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. How served if SEC. 628. The marshal or any deputy or any person specially appointed by him, but none other, is authorized and required to break witness concealed. into any building or vessel in which a witness may be concealed, so as to prevent the service of a subpoena, and serve the same upon such witness. SEC. 629. Proof of service of a subpoena shall be made in the same manner as in the service of a summons. Proof of service. When witness SEC. 630. A witness is not obliged to attend for oral examination or otherwise at a place distant more than one hundred miles from the obliged to attend. place where he resides or at which he may be served with a subpœna; except that in an action or proceeding pending in a court of record the court or judge thereof, upon the affidavit of the party, or some one on his behalf, showing that the testimony of the witness is material and his oral examination importa: and desirable, may indorse upon Person present the subpoena an order for the attendance of the witness; the service of such subpoena and order and the payment of legal fees to the witness are sufficient to require his attendance, if he be served within the district. SEC. 631. A person present in court or before a judicial officer may compelled to tes- be required to testify in the same manner as if he were in attendance tify. before such court or officer on a subpoena. Disobedience to subpoena, how punished. Forfeiture there for. When warrant may be issued to bring witness. Warrant of arrest or commitment. If witness be a SEC. 632. 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 before whom he is required to attend or the refusal takes place, and if the witness be a party his complaint, answer, or reply may be stricken out. SEC. 633. A witness disobeying a subpoena duly served shall forfeit to the party requiring his attendance 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 by an action at law. SEC. 634. In case of the failure of a witness to attend, the court or officer before whom he is required to attend, upon proof of the due service of the subpoena and tender of his fees, may issue a warrant to the marshal requiring him to arrest the witness and bring him before the court or officer where his attendance was required. SEC. 635. Every warrant of commitment issued by a court or officer pursuant to this chapter shall specify therein the cause of the commitment; and if it be for refusing to answer a question such question shall be stated in the warrant. SEC. 636. If the witness be a prisoner, confined in a prison within prisoner, how pro- the district, an order for his examination in the prison upon a deposiduced or examined. tion, or for his temporary removal and production, before a court or officer, for the purpose of being orally examined, may be made as follows: First. By the court or judge thereof in which the action or proceeding is pending, unless it be a court of a justice of the peace; Second. By any judge of a court of record, when the action or proceeding is pending in a justice's court, or when the witness's deposition, affidavit, or oral examination is required before a judge or other person out of court; Third. Such order shall only be made upon the affidavit of the party desiring the order, or some one on his behalf, showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality; Fourth. If the witness be imprisoned at the place 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 shall be taken by deposition. Testimony. Sec. CHAPTER SIXTY. OF THE MODE OF TAKING THE TESTIMONY OF WITNESS. Sec. How authenti side the district. 637. How authenticated if taken outside 638. Affidavit, when may be used. cross-examination. 640. Proof of publication by affidavit. 641. Where affidavit may be filed, and effect thereof. SEC. 637. An affidavit or deposition taken in any State or Territory cated if taken out of the United States, the District of Columbia, or in a foreign country, otherwise than upon commission, must be authenticated as follows before it can be used in the district: First. It must be certified by a commissioner appointed by the governor of the district to take affidavits and depositions in such State, Territory, District, or country, or Second. It must be certified by a judge of a court having a clerk and a seal to have been taken and subscribed before him at a time and place therein specified, and the existence of the court, the fact that such judge is a member thereof, and the genuineness of his signature shall be certified by the clerk of the court, under the seal thereof. SEC. 638. An affidavit may be used to prove the service of a summons, notice, or other paper in an action or proceeding to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, or upon a motion, and in any other case expressly provided for by law, except as provided in the next section. Affidavit, when may be used. When deponent to be produced for SEC. 639. Whenever a provisional remedy has been allowed upon affidavit, the party against whom it is allowed may serve upon the party cross-examinaby whom it was obtained a notice requiring the person making the affi- tion. davit to be produced before some officer authorized to administer oaths, therein named, for cross-examination. Thereupon the party to whom the remedy was allowed shall lose the benefit of the affidavit and all proceedings founded thereon, unless within eight days, or such other time as the court or judge thereof may direct, upon a previous notice to his adversary of at least three days, he produce the deponent for examination before the officer mentioned in the notice, or some other of like authority, provided for in the order of the court or judge. Upon such production the deponent may be examined by either party, but a party shall not be obliged to produce a witness for examination as in this section provided, except within the district where the provisional remedy was allowed. SEC. 640. Proof of the publication of a document or notice required by law, or by an order of court or a judge, to be published in a news paper, may be made by the affidavit of the printer of the newspaper or his foreman or principal clerk, annexed to a copy of the document or notice, specifying the times when and the paper in which the publication was made. But such affidavit must be made within six months after the last day of publication. Proof of publication by affidavit. Where affidavit SEC. 641. If such affidavit be made in an action or proceeding pending in a court, it may be filed with the clerk thereof; and the same is may be filed, and primary evidence of the facts therein stated. CHAPTER SIXTY-ONE. OF DEPOSITIONS. effect thereof. Sec. Sec. 642. Deposition, when used.. 643. Testimony of witness out of the district. 644. When deposition taken of witness used. SEC. 642. In all cases other than those mentioned in section six Deposition, when hundred and thirty-eight where a written declaration under oath is used, it must be a deposition. SEC. 643. The testimony of a witness out of the district may be taken by deposition in an action at any time after the service of the summons or the appearance of the defendant, and in a special proceeding at any time after a question of fact has arisen therein. SEC. 644. The testimony of a witness in the district may be taken by deposition, in an action, at any time after the service of the summons, or the appearance of the defendant; and in a special proceeding after a question of fact has arisen therein, in the following cases: First. When the witness is a party to the action or proceeding, by the adverse party; Testimony of witness out of the district. When deposition taken of witness within district. Testimony of a Second. When the witness's residence is such that he is not obliged to attend in obedience to the subpoena, as provided in section six hundred and thirty; Third. When the witness is about to go more than one hundred miles beyond the place of trial; Fourth. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend; Fifth. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required. Sec. CHAPTER SIXTY-TWO. OF THE MANNER OF TAKING DEPOSITIONS OUT OF THE DISTRICT. 645. Testimony of a witness out of the 646. Commission, how and by whom 647. Interrogatories may be annexed. SEC. 645. The deposition of a witness out of the district may be taken witness out of the upon commission issued from the court, or without commission before a district, how commissioner appointed by the governor of the district to take depositions in any State, Territory, or District of the United States, or in any foreign country. taken. Commission, issued. SEC. 646. The commission may be issued by the clerk of the court, how and by whom or by a justice of the peace in a cause in his own court, on the application of either party upon five days' previous notice to the other. It shall be issued to a person agreed upon by the parties, or if they do not agree, to a judge, justice of the peace, notary public, or clerk of a court, selected by the officer issuing it. Interrogatories SEC. 647. Such interrogatories, direct and cross, as the respective may be annexed. parties may prepare, to be settled by the clerk or justice in a summary manner as to the form thereof, if the parties disagree, may be annexed to the commission, or when the parties agree to that mode, the examination may be without written interrogatories. Contents commission. of Trial, when SEC. 648. The commission shall authorize the commissioner to administer an oath to the witness and to take his deposition in answer to the interrogatories, or when the examination is to be without them, in respect to the question in dispute, and to certify the deposition to the court in a sealed envelope, directed to the clerk or justice who issued the commission, or other person designated and agreed upon, and forward it to him by mail or other usual channel of conveyance. SEC. 649. A trial or other proceeding shall not be postponed by reason postponed there- of a commission not being returned, except it appear by affidavit that the testimony of the witness is material and necessary, and that proper diligence has been used to obtain it. for. Deposition taken out of district before commission. Either party SEC. 650. The deposition of a witness out of the district, and in any State, Territory, or District of the United States, may also be taken before a commissioner appointed by the governor of the district to take depositions in such State, Territory, or District, upon giving to the adverse party eight days' notice of the time and place of the examination, the name of the commissioner, and the witness, if the distance of the place of examination from the place where the testimony is to be used does not exceed fifty miles, and one day in addition for every additional twenty-five miles. SEC. 651. Either party may attend upon such examination and may attend or re-examine the witnesses upon oral interrogatories, but if either party, terrogatories. by a written notice to the other within three days from the service of the original notice, require it, it shall be taken upon written inter |