mode of administering the oath shall be such as is most binding upon the conscience of the witness. Mode of Taking Testimony of Witnesses. SEC. 339. The testimony of witnesses may be taken in three Mode of t a kmodes: First, By affidavit ; Second, By deposition; Third, By oral examination. ing testimony of witnesses. SEC. 340. An affidavit is a written declaration under oath, Affidavit. made without notice to the adverse party. SEC. 341. A deposition is a written declaration, under oath, Deposition. made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine; or upon written interrogatories. tion. SEC. 342. An oral examination is an examination in the pres- Oral examinaence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness. Affidavit. SEC. 343. The affidavit may be used to verify a pleading, to Affidavit. prove the service of a summons, notice or other process in the action, to obtain a provisional remedy, the examination of a witness, a stay of proceedings, or upon a motion, and in any other case permitted by law. Territory. SEC. 344. An affidavit may be made in and out of this Terri- May be made tory, before any person authorized to take depositions, and must in and out of be authenticated in the same way, except as provided in section one hundred and eight. Depositions. SEC. 345. The depositions of any witness may be used only in Depositions the follwing cases : First, When the witness does not reside in the county where the action or proceeding is pending, or is sent for trial by change of venue, or is absent therefrom; Second, When from age, infirmity or imprisonment, the witness is unable to attend the court, or is dead; Third, When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required: Fourth, And in cases of appeal from justices' courts. SEC. 346. Either party may commence taking testimony by depositions, at any time after service upon the defendant. Officers who may Take Them. used, in what cases. take deposi SEC. 347. Depositions may be taken in this Territory before a who may judge or clerk of the supreme or district court, or before a pro- tions in Terbate judge, justice of the peace, notary public, mayor or chief ritory. magistrate of any city or town corporate, or before a master commissioner, or any person empowered by a special commission; but depositions taken in this Territory, to be used therein, must be taken by an officer or person whose authority is derived within the Territory. Who may SEC. 348. Depositions may be taken out of the Territory by a take deposi Territory. tions out of judge, justice or chancellor of any court of record, a justice of the peace, notary public, mayor or chief magistrate of any city or town corporate, a commissioner appointed by the governor of this Territory to take depositions, or any person authorized by a special commission from this Territory. Officer must not be related SEC. 349. The officer before whom depositions are taken must or interested. not be a relative or attorney of either party, or otherwise interested in the event of an action or proceeding. Commission sition. SEC. 350. Any court of record of this Territory, or any judge to take depo- thereof, is authorized to grant a commission to take depositions within or without the Territory. The commission must be issued to a person or persons therein named by the clerk, under the seal of the court granting the same, and depositions under it must be taken upon written interrogatories, unless the parties otherwise Manneroftaking and a u depositions. agree. Manner of Taking and Authenticating Them. SEC. 351. Prior to taking of any deposition, unless taken under thenticating a special commission, a written notice, specifying the action or proceeding, the name of the court or tribunal in which it is to be used, and the time and place of taking the same, shall be served upon the adverse party, his agent or attorney of record, or left at his usual place of abode. The notice shall be served so as to allow the adverse party sufficient time by the usual route of travel to attend, and one day for preparation, exclusive of Sundays and the day of service, and the examination may, if so stated in the notice, be adjourned from day to day. Notice by pub. lication to tions. SEC. 352. When the party against whom the deposition is to take deposi- be read is absent from, or a non-resident of the Territory, and has no agent or attorney of record therein, he may be notified of the taking of the depositions by publication. The publication must be made three consecutive weeks, in some newspaper printed in the county in which the action or proceeding is pending; or, if there be no paper printed in the county, then in some newspaper printed in this Territory, of general circulation in that county. The publication must contain all that is required in a written notice, and may be proved in the manner prescribed in section sixty-nine. Deposition shall be written, etc. Shall be seal remain under seal, etc. SEC. 353. The deposition shall be written in the presence of the officer taking the same, either by the officer, the witness, or some disinterested person, and subscribed by the witness. It SEC. 354. The deposition so taken shall be sealed up and ed, addressed, indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the court where the action or proceeding is pending. shall remain under seal until opened by the clerk, by order of the court, or at the request of a party to the action or proceeding, or his attorney. SEC. 355. Depositions shall be ad dence, etc. Depositions taken pursuant to this article shall be mited in evi- admitted in evidence on the trial of any civil action or proceeding pending before any justice of the peace, mayor, or other judicial officer of a city or town corporate, or before any arbitrators or referees, and such depositions shall be scaled up, indorsed with the title of the action or proceeding, the name of the officer taking the same, and addressed and transmitted by such officer to such justice, mayor or other judicial officer, arbitrators or referees. SEC. 356. When a deposition has once been taken, it may be Deposition read in any stage of the same action or proceeding, or in any in different other action or proceeding upon the same matter between the actions besame parties-subject, however, to all such exceptions as may be parties. taken thereto under the provisions of this title. may be used tween same tion of deposi SEC. 357. Depositions taken pursuant to this article by any Authentica judicial or other officer herein authorized to take depositions, tions. having a seal of office, whether resident of this Territory or elsewhere, shall be admitted in evidence, upon the certificate and signature of such officer, under seal of the court of which he is an officer, or his official seal, and no other or further act or authentication shall be required. If the officer taking the same have no official seal, the deposition, if not taken in this Territory, shall be certified and signed by such officer, and shall be further authenticated, either by parol proof adduced in court, or by the official certificate and seal of any secretary or other officer of state, keeping the great seal thereof, or by the clerk or prothonotary of the court, having a seal, attesting that such judicial or other officer was, at the time of taking the same, within the meaning of this title, authorized to take the same. But if the deposition be taken within this Territory, by an officer having no seal, or within this Territory under a special commission, it shall be sufficiently authenticated by the official signature of the officer or commission taking the same. SEC. 358. The officer taking the deposition shall annex thereto officer shall a certificate showing the following facts: First, That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth; Second, That the deposition was reduced to writing by some proper person (naming him); annex certificate to deposition. Third, That the deposition was written and subscribed in the presence of the officer certifying thereto; Fourth, That the deposition was taken at the time and place specified in the notice. it must be SEC. 359. When a deposition is offered to be read in evidence, When deposiit must appear to the satisfaction of the court that for any cause in evidence, specified in section three hundred and forty-five, the attendance shown that of the witness cannot be procured. witness cannot be produced. SEC. 360. Every deposition intended to be read in evidence on Must be filed the trial must be filed at least one day before the day of trial. Exceptions to Depositions. one day before trial. depositions. SEC. 361. Exceptions to depositions shall be in writing, speci- Exceptions to fying the grounds of objection, and filed with the papers in the cause. SEC. 362. No exception, other than for incompetency or irrelevancy, shall be regarded, unless made and filed before the commencement of the trial. Court shall SEC. 363. The court shall, on motion of either party, hear and hear and de cide on mo- decide the questions arising on exceptions to depositions, before the commencement of the trial. tion. Errors waived SEC. 364. Errors of the court, in its decisions upon exceptions if not except to depositions, are waived unless excepted to. ed to. Admissions, Inspections and Production of Documents. Admissions, SEC. 365. Either party may exhibit to the other or to his and produc- attorney, at any time before the trial, any paper or document tions of writ- material to the action, and request an admission in writing of its inspections ments. Either party may demand an inspection writing, etc. genuineness. If the adverse party or his attorney, fail to give the admission in writing within four days after the request, and if the party exhibiting the paper or document be afterwards put to any cost or expense to prove its genuineness, and the same be finally proved or admitted on the trial, such costs and expenses, to be ascertained at the trial, shall be paid by the party refusing to make the admission, unless he shall make it appear to the satisfaction of the court, that there were good reasons for the refusal. SEC. 366. Either party or his attorney may also demand of the of the other adverse party, an inspection and copy, or permission to take a and copy of copy of a book, paper, or document in his possession, or under his control, containing evidence relating to the merits of the action or defense therein. Such demand shall be in writing, specifying the book, paper or document, with sufficient particularity to enable the other party to distinguish it, and if compliance with the demand, within four days, be refused, the court or judge, on motion and notice to the adverse party, may, in their discretion, order the adverse party to give the other, within the specified time, an inspection and copy or permission to take a copy, of such book, paper or document; and on failure to comply with such On failure to order, the court may exclude the paper or document from being given in evidence, or if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party, by affidavit, alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper or document, when he is examined as a witness. comply the court may ex clude. Opposite par nish copy of instrument. If SEC. 367. Either party, or his attorney, if required, shall ty shall fur deliver to the other party, or his attorney, a copy of any deed, deed or other instrument or other writing, whereon the action or defense is founded, or which he intends to offer in evidence at the trial. the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence at the trial, the original, of which a copy has been refused. This section shall not apply to any paper, a copy of which is filed with a pleading. Statutes of evidence. SEC. 368. Printed volumes, in volumes of statutes, codes, or other states, other written law, enacted by any other State or Territory, or foreign government, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law, in the courts or tribunals of such State, Territory or government, shall be admitted by the courts and officers of this Territory, on all occasions, as presumptive sumptive evi- evidence of such laws. The unwritten or common law of any other State, Territory or foreign government may be proved as Reports pre dence of law, facts by parol evidence; and the books of reports of cases adjudged in their courts may also be admitted as presumptive evidence of such law. justice of the SEC. 369. The official certificate of a justice of the peace of Certificate of any of the United States, to any judgment, and the preliminary peace of forproceeding before him, supported by the official certificate of the eign States. clerk of any court of record within the county in which such justice resides, stating that he is an acting justice of the peace of that county, and that the signature of his certificate is genuine, is sufficient evidence of such proceedings and judgment. Proceedings to Perpetuate Testimony. SEC. 370. The testimony of a witness may be perpeutated in Proceedings the following manner: SEC. 371. The applicant shall file in the office of the clerk of the district court, a petition, to be verified, in which shall be set forth, specially, the subject matter relative to which testimony is to be taken, and the names of the persons interested, if known to the applicant; and if not known, such general description as he can give of such persons, as heirs, devisees, alienees or otherwise. The petition shall also state the names of the witnesses to be examined, and the interrogatories to be propounded to each; that the applicant expects to be a party to an action in a court of this Territory, in which such testimony will, as he believes, be material, and the obstacles preventing the immediate commencement of the action where the applicant expects to be the plaintiff. to perpetuate The applicant shall file in etc. make an or SEC. 372. The court, or a judge thereof, may forthwith make The court or an order allowing the examination of such witnesses. The order judge may shall prescribe the time and place of the examination, how long der. the parties interested shall be notified thereof, and the manner in which they shall be notified. shall appoint examine wit nesses. SEC. 373. When it appears satisfactorily to the court or judge The court that the parties interested cannot be personally notified, such court or judge shall appoint a competent attorney to examine the petition and prepare and file cross-interrogatories of those contained therein. The witnesses shall be examined upon the interrogatories of the applicant, and upon cross-interrogatories, where they are required to be prepared, and no others shall be propounded to them; nor shall any statement be received which is not responsive to some one of them. The attorney filing the cross-interrogatories shall be allowed a reasonable tee therefor, to be taxed in the bill of costs. one authoriz SEC. 374. Such depositions shall be taken before some one shall be taken authorized by law to take depositions, or before some one specially before some authorized by the court or judge, and shall be returned to the ed to take deelerk's office of the court in which the petition was filed. positions. shall approve filed. SEC. 375. The court or judge, if satisfied that the depositions The court have been properly taken, and as herein required, shall approve the testimony the same, and order them to be filed; and, if a trial be had and order it between the parties named in the petition, or their priors or successors in interest, such depositions or certified copies thereof, may be given in evidence by either party, where the witnesses are dead or insane, or where their attendance for oral examination |