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bate judge of the county where the action or proceeding is pending, if before a judge or other person out of court.

SEC. 333. Such order can only be made upon affidavit showing the nature of the action or proceeding, the testimony expected by the witness, and its materiality.

SEC. 334. If the witness be imprisoned in the county where the action or proceeding is pending, and for cause other than a sentence for felony, his production may be required; in all other cases his examination when allowed shall be taken upon deposition.

Sec. 335. Every person served with a subpoena to attend as a witness before a court, judge, commissioner, referee, or other person, in a cause where the disobedience of the witness may be

punished as a contempt, shall be exonorated from arrest in a civil action while going to the place of attendance, necessarily remaining there, and returning therefrom.

CHAPTER II.

ON AFFIDAVITS. Sec. 336. An affidavit to be used before any court, judge, or officer of this Territory, may be taken before any judge, or clerk of any court, or any justice of the peace, or notary public, of this Territory.

Sec. 337. An affidavit taken in another state or territory of the United States, to be used in this Territory, shall be taken before a commissioner appointed by the governor of this Territory to take affidavits and depositions in such other state or territory, or before a judge of record having a seal.

Sec. 338. An affidavit taken in a foreign country, to be used in this Territory, shall be taken before an ambassador, minister, or consul of the United States, or before any judge of a court of record having a seal, in such foreign country.

Sec. 339. When an affidavit is taken before a judge of a court of any other state or territory, or a foreign country, the genuineness of the signature of the judge, the existence of the court, and the fact that such judge is a member thereof, shall be certified by the clerk of the court under the seal thereof.

CHAPTER III.

DEPOSITIONS TAKEN IN THIS TERRITORY. Sec. 340. The testimony of a witness of this 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 after a question of fact has arisen therein in the following cases: First, When the witness resides out of the county in which his testimony is to be used. Second, When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required. Third, When the witness is sick, too infirm to attend the trial, or there is an apprehension that he will die before the time of trial.

Sec. 341. Either party may have the deposition taken of a witness in this Territory, before any judge or clerk, or any justice of the peace or notary public in this Territory, on serving upon the adverse party previous notice of the time and place of examination, and showing that the case is one mentioned in the last section, at any time after the service of the summons or appearance of the defendant, or after the completion of notice by publication, and at any time thereafter. When the defendant has not appeared, the notice may be served on the clerk of the court where the action is pending. Such notice shall be at least five days, and one additional day for every twenty-five miles of the distance from the residence of the party to the place of examination, 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. 342. Either party may attend at 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, and a certificate attached by the officer taking the same, that the witness was sworn, the time and place of taking the deposition, and whether or not the parties were present, and shall then enclose it in an envelope or wrapper, seal it, and direct it to the clerk of the court in which the action is pending, and endorse on the envelope or wrapper the names of the parties to

the action. Such deposition may be sent through the mail or by some safe private opportunity, or by any person by which the parties in writing may agree.

Such deposition, when so taken, 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 a party attend at the examination, such party shall make no objection at the trial to the form of an interrogatory unless the same was stated at the time of the examination and noted in the deposition. All objections to a deposition shall be taken before the commencement of the trial.

Sec. 343. It shall appear at the trial that the cause for taking the deposition still exists or that such witness is dead.

SEC. 344. When a deposition bas been once taken, it may be read in any stage of the same action or proceeding by either party, or in any subsequent action between the same parties for the same cause, and shall then be deemed the evidence of the party reading it.

CHAPTER IV.

DEPOSITIONS TAKEN OUT OF THIS TERRITORY. SEC. 345. The testimony of a witness out of this Territory may be taken by deposition in an action at any time after the service of the summons, or the appearance of the defendant, or the publication of notice to a non-resident, and in a special proceeding at any time after a question of fact has arisen therein.

Sec. 346. The deposition of a witness out of this Territory shall be taken upon commission issued by the clerk of the court where the action or proceeding is pending, under the seal of the court, on the application of either party. It shall be issued to some person authorized to take depositions at the place where the depositions are to be taken, and shall specify the action or proceeding in which the deposition is to be used, the time and place of the taking of the same, and shall authorize such person to take such deposition.

Sec. 347. The party taking such deposition shall serve upon the opposite party a notice stating the time and place of the taking of such deposition. Such notice shall be served by delivering a copy thereof to the adverse party or his attorney a sufficient length of time to enable such adverse party to travel from his residence, by the most usually travelled route, to the place of taking such deposition, and ten days in addition. When such adverse party has no attorney of record, and his place of residence is unknown to the party, such notice may be filed with the clerk of the court in which the action is pending the time herein specified before the taking of the deposition.

SEC. 348. Each party may attend at the taking of such deposition, and put such questions as may be legal and proper. Such deposition when taken shall be signed by the witness.

Sec. 349. The officer taking the deposition shall administer an oath to the witness, and when the deposition is completed he shall enclose the same in an envelope or wrapper, together with the commission issued to him, and the notice or a copy of the notice served upon the adverse party, and endorse upon the envelope or wrapper the names of the parties to the action or proceeding, and seal the same, and direct it to the clerk of the court in which the action is pending. Such deposition may be transmitted by mail, or by any person that the parties in writing may agree upon.

Sec. 350. The officer taking such deposition shall append to the same a certificate, under seal if he have one, showing, First, The time and place of taking such deposition; Second, Thatothe witness was sworn according to law; Third, Whether or not the parties were present in person or by attorney.

SEC. 351. If such deposition be taken by an officer not having a seal, a certificate of a clerk of a court of record having a seal shall be appended, showing that the officer taking such deposition is authorized by the laws of the place where the deposition is taken to take depositions, and that the person taking the same is authorized to exercise the duties of such office.

SEC. 352. Such depositions shall be subject to the same rules of construction as depositions taken in this Territory.

Sec. 353. A trial or other proceeding shall not be postponed by reason of a commission not returned, except on evidence satisfactory to the court that the testimony of the witness is necessary, and that proper diligence bas been used to obtain it.

CHAPTER V.

PROCEEDINGS TO PERPETUATE TESTIMONY.

Sec. 354. The testimony of a witness may be taken and perpetuated as provided in this chapter of this act.

Sec. 355. The applicant shall produce to the 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 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 be anticipated, or if anticipated he may not know the parties to the 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 to be published in some newspaper to be designated by the judge making the order.

SEC. 356. Upon proof of the 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. 357. The examination shall be by question and answer, unless the parties otherwise agree. The depositions, when taken, shall be carefully read to and subscribed by the witness, then certified to 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.

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