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under such commission, it shall be the duty of the
commissioner therein named, at the request of either
party to the suit in which it is proposed to use such
testimony, or his attorney, to certify such failure to
attend, or refusal to testify, to the judge of the circuit
court of the city or county, where said commission is
to be executed, and the said judge on receiving the
said certificate, shall forthwith issue bis order, com-
manding the said delinquent witness on some day
and at some place therein appointed, to appear before
him and shew cause why he, the said witness, has so
failed to attend or refused to testify, a copy of which
order shall be served upon said delinquent witness at
least five days before the day therein appointed ; and
if the said witness after having had such notice of
said order, shall neglect or refuse to appear before
said judge, or appearing, shall fail to shew good and
sufficient cause why he, the said witness, has so failed
to attend, or refused to testify before the said com-
missioner; then and not otherwise, the said judge
may issue an attachment in the name of the state,
and compel the appearance and answer of such wit-
ness, in the same manner as any court in this state
would be authorized to do, if such witness had been
summoned to appear before such court, and had failed
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How attend-
ance of wit-
nesses com-
pelled, under
commissions
from abroad.
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to attend or refused to answer ; provided, that the said
judge may extend the time for the hearing before
him, if deemed by him necessary or important.
In force from February 28, 1862.
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Proviso.
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