of the peace, or notary public in this territory, on serving upon the adverse party previous notice of the time and place of the examination, together with a copy of an affidavit, showing that the case is one mentioned in the last section, at any time during the forty days immediately after the service of the summons by publication has been completed, and at any time thereafter when the defendant has not appeared, the notice required by this section may be served on the clerk of the court where the action is pending. Such notice shall be at least five days, and in addition, one day for every twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless for a cause shown, a judge, by order, prescribe a shorter time. When a shorter time is prescribed, a copy of the order shall be served with the notice.

SEC. 388. Either party may attend such examination, and put such questions, direct and cross, as may be proper. The deposition, when completed, shall be carefully read to the witness, and corrected by him in any particular, if desired; it shall then be subscribed by the witness, certified by the judge or officer taking the deposition, enclosed in an envelope or wrapper, sealed, and directed to the clerk of the court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the judge or officer to the clerk or such person, or transmitted through the mail, or by some safe private opportunity; and thereupon such deposition may be used by either party upon the trial or other proceeding, against any party giving or receiving the notice, subject to all legal exceptions. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken by reason of the absence or intended absence from the county of the witness, or because he is too infirm to attend, proof by affidavit or oral testimony shall be made at the trial, that the witness continues absent, or infirm, to the best of the deponent's knowledge or belief. The deposition thus taken may be also read in case of the death of the witness.

SEC. 389. When a deposition has been once taken, it may be read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it.

CHAPTER VI.

OF DEPOSITIONS TAKEN OUT OF THIS TERRITORY.

SEC. 390. The testimony of a witness out of the territory 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. 391. The deposition of a witness out of this territory shall be taken upon commission issued from the court, under the seal of the court, upon an order of the judge, or court, or probate judge, 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 any judge or justice of the peace selected by the officer granting the commission, or to a commissioner appointed by the governor of this territory to take affidavits and depositions in other states.

SEC. 392. Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled, if the parties disagree as to their form, by the judge or officer granting the order for the commission, at a day fixed in the order, may be annexed to the commission; or, when the parties agree to that mode, the examination may be without written interrogatories.

SEC. 393. 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 interrogatories, in respect to the question in dispute; and to certify the deposition to the court, in a sealed envelope, directed to the clerk, or other person designated or agreed upon, and forward to him by mail or other usual channel of conveyance.

SEC. 394. A trial, or other proceeding, shall not be postponed by reason of a commission not returned, except upon evidence satisfactory to the court, that the testimony of the witness is necessary, and that proper diligence has been used to obtain it.

CHAPTER VII.

OF PROCEEDINGS TO PERPETUATE TESTIMONY.

SEC. 395. The testimony of a witness may be taken and perpetuated as provided in this chapter of this act.

SEC. 396. The applicant shall produce to a district judge, or to a probate judge, an affidavit stating: First. That the applicant expects to be a party to an action in a court of this territory, and in such case, the name or names of the person or persons whom he expects will be adverse parties; or Second. That the proof of some fact or facts is necessary to perfect the title to property in which he is interested, or to establish marriage, descent, heirship, or any other matter which may hereafter become material to establish, though no suit may at the time be anticipated, or if anticipated, he

may not know the parties to such suit; and Third. The name or names of the witness or witnesses to be examined at his or their place of residence and a general outline of the facts expected to be proved. The judge to whom such petition is presented shall make an order allowing the examination and prescribing the notice to be given, which notice, if the parties are known and reside in this territory, shall be personally served on them; and if unknown, such notice shall be served on the clerk of the county where the property to be affected by such evidence is situated, and a notice thereof published in some newspaper to be designated by the judge making the order.

SEC. 397. Upon proof of service of the notice, as provided in the last section, it shall be the duty of the judge before whom the depositions are ordered to be taken, to proceed to take the depositions of the witnesses named in such petition, upon the facts therein set forth; and the taking of the same may be continued from time to time, in the discretion of the judge.

SEC. 398. The examination shall be by question and answer, unless the parties otherwise agree. The deposition, when taken, shall be carefully read to, and subscribed by the witness, then certified by the judge, and immediately thereafter filed in the office of the clerk of the district court of the county where the same was taken; together with the order for the examination, the petition on which the same was granted, and the proof of service of notice.

SEC. 399. The affidavits or other proof filed with the deposition, or certified copies thereof, shall be prima facie evidence of the facts stated therein.

SEC. 400. If a trial be had between the persons named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the fact which such depositions prove, or tend to prove, upon proof of the death or insanity of the witness or witnesses, or of his or their inability to attend the trial, by reason of age, sickness, or settled infirmity, the deposition or depositions, or certified copies thereof, may be used by either party, subject to all legal objections. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the examination.

CHAPTER VIII.

ADMINISTRATION OF OATHS AND AFFIRMATIONS.

SEC. 401. Every court of this territory, every judge or clerk of any county, every justice of the peace, and every notary public, and every officer authorized to take testimony, or to decide upon evidence

in any proceeding, shall have power to administer oaths or affirmations.

SEC. 402. When a person. is sworn who believes in any other than the christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such.

SEC. 403. Any witness who desires it, may, at his option, instead of taking an oath, make his solemn affirmation or declaration, by assenting, when addressed, in the following form: "You do solemnly affirm that the evidence you shall give in this issue (or matter) pending between shall be the truth,

and

Assent to this affirma

A false affirmation or

the whole truth, and nothing but the truth."
tion shall be made by the answer: "I do."
declaration shall be deemed perjury equally with a false oath.

CHAPTER IX.

INSPECTION OF DOCUMENTS, AND MISCELLANEOUS PROVISIONS AS TO RECORDS AND WRITINGS.

SEC. 404. Any court in which any action is pending, or a judge thereof, or a probate judge, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy of any book, document, or paper in his possession, or under his control, containing evidence relating to the merits of the action or the defense therein. If compliance with the order be refused, the court may exclude the book, document, or paper 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 he alleges it to be, and the court may also punish the party refusing for a contempt. This section shall not be construed to prevent a party from compelling another to produce books, papers, or documents, when he is examined as a witness.

SEC. 405. There shall be no evidence of the contents of a writing other than the writing itself, except in the following cases: First. When the original has been lost or destroyed-in which case proof of the loss or destruction shall first be made. Second. When the original is in the possession of the party against whom the evidence is offered, and he fails to produce it, after reasonable notice. Third. When the original is a record or other document in the custody of a public officer. Fourth. When the original has been recorded, and a certified copy of the record is made evidence by statute. Fifth. When the original consists of numerous accounts, or other documents, which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.

SEC. 406. The party producing a writing as genuine, which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, and such alteration is not noted on the writing, shall account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made. If he do that, he may give the writing in evidence, but not otherwise.

SEC. 407. A judicial record of this territory, or of the United States, may be proved by the production of the original, or a copy thereof, certified by the clerk or other person having the legal custody thereof, under the seal of the court, to be a true copy of such record.

SEC. 408. The records and judicial proceedings of the courts of any state of the United States may be proved or admitted in the courts of this territory, by the attestation of the clerk and the seal of the court annexed, (if there be a seal) together with a certifi cate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form.

SEC. 409. A judicial record of a foreign country may be proved by the production of a copy thereof, certified by the clerk, with the seal of the court annexed, (if there be a clerk and seal) or by the legal keeper of the record, with the seal of his office annexed, (if there be a seal) to be a true copy of such record, together with a certificate of a judge of the court that the person making the certificate is the clerk of the court or legal keeper of the record-and in either case that the signature is genuine and the certificate in due form; and also, together with the certificate of the minister or embassador of the United States, or of a consul of the United States, in such foreign country, that there is such a court, specifying generally the nature of its jurisdiction, and verifying the signature of the judge and clerk, or other legal keeper of the record.

SEC. 410. A copy of the judicial record of a foreign country shall also be admissible in evidence upon proof: First. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it. Second. That such original was in the custody of the clerk of the court or other legal keeper of the same; and, Third. That the copy is duly attested by a seal, which is proved to be the seal of the court where the record remains, if it be the record of a court; or (if there be no such seal, or if it be not a record of a court) by the signature of the legal keeper of the original.

SEC. 411. Printed copies, in volumes of statutes, codes, or 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