62 EVIDENCE. [ART. 35.

lowing two sections of this article, the testimony of a witness
or witnesses, and in connection therewith, the production of
books and papers within this State, to be used in such action,
suit or special proceeding.

1906, ch. 239.

36 A. Whenever any commission, or process in the nature of
a commission, to take the testimony of a witness or witnesses
named therein within this State shall be issued by any court
without the State, either in any State, district or territory of
the United States, or in a foreign country, directed to any per-
son, designated by name, title of office or otherwise, in this
State, the person so designated as commissioner shall serve
notice on the witness or witnesses to be examined under said
commission, of the time and place appointed for the execution of
said commission at least five days before the day so appointed;

and whenever the judge of the court, wherein such action, suit
or special proceeding is pending, is satisfied by the affidavit of
either party thereto or otherwise, and it be stated in such com-
mission or process in the nature of a commission, that any wit-
ness to be examined under such commission or process, has in his
possession or control any paper, writing, written instrument,
book or other document, which, if produced, would be compe-
tent and material evidence for the parties to such suit or action,
or either of them, and said paper, writing, written instrument,
book or other document be sufficiently described for identifica-
tion in said commission or process in the nature of a commis-
sion, the said commissioner therein appointed shall serve notice
as aforesaid of the time and place appointed for the execution
of said commission, and therein require said witness to bring
with him and produce to said commissioner any such paper,
writing, written instrument, book or other document, supposed
to be in his possession or control, the same to be described or
identified in said notice as in said commission.

Ibid.

36 B. If any witness, who shall have been duly notified so to
do as prescribed in the foregoing section shall fail to attend at
the execution of said commission, or refuse to testify or to
answer such questions as may be propounded to him under
such commission, or shall fail to produce, pursuant to said