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SEC. 308. The court upon motion may vacate the award upon either of the following grounds, and may award a new hearing before the same arbitrators, or not, in its discretion: First, That it was procured by corruption or fraud. Second, That the arbitrators were guilty of misconduct, or committed gross error in refusing, on cause shown, to postpone the hearing, or refusing to hear pertinent evidence, or otherwise acted improperly in a manner in which the rights of the party were prejudiced. Third, That the arbitrators exceeded their powers in making their award, or that they refused or improperly omitted to consider a part of the matter submitted to them, or that the award is indefinite or cannot be performed.

SEC. 309. The court may on motion correct or modify the award, when it appears: First, That there was a miscalculation in figures upon which it was made, or that there is a mistake in the description of some person or property therein. Second, When a part of the award is upon matters not submitted which can be separated from other parts and does not affect the decision on the matter submitted. Third, When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded.

SEC. 310. The decision upon the motion shall be subject to appeal, or writ of error, in the same manner as an order which is subject to appeal or writ of error in civil actions, but the judgment entered before motion is made shall not be subject to appeal or writ of error.

SEC. 311. If a submission be revoked and an action be brought therefor, the amount to be recovered shall only be the costs and damages sustained in preparing for and attending the arbitration.

CHAPTER V.

OFFER TO CONFESS JUDGMENT.

SEC. 312. The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken for the sum or property, or to the effect therein specified. If the plaintiff accept the offer and give notice thereof in five days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance, and judgment may thereupon be entered

accordingly. If the notice of acceptance be not given within the time limited, the offer shall be deemed withdrawn, and shall not be given in evidence, and if the plaintiff fail to recover a more favorable judgment, he shall not recover costs, but shall pay the defendant's costs from the time of the offer.

CHAPTER VI.

ACTIONS FOR DEBTS NOT due.

SEC. 313. Actions may be commenced on any note, bill, bond, or other instrument in writing, for the payment of money, or for the delivery of any gold dust, or gold or silver bullion, before the same shall have become due, when it shall appear by the affidavit of the plaintiff, or some one in his behalf: First, That the defendant is leaving, or is about to leave, this Territory, taking with him property, moneys, rights, credits, or other articles that might be subject to the payment of the debt. Second, That the defendant is disposing of his property, or is about to dispose of property subject to execution, for the purpose of defrauding his creditors. The affidavit shall also state the nature of the indebtedness and the amount due the plaintiff. The affidavit shall be filed with the complaint.

SEC. 314. Attachments may be issued in such cases under the same rules and subject to like restrictions as provided for in other

cases.

SEC. 315. The defendant may by plea put in issue the matters alleged in the affidavit herein required, and if the defendant fail to substantiate them, the suit shall abate.

SEC. 316. The court, or a judge thereof, or a probate judge, may, on motion, after reasonable notice to the plaintiff, dismiss such action if it appear that there was no sufficient grounds for the commencement of the same.

TITLE XII.

CHAPTER I.

OF WITNESSES.

SEC. 317. No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same as a party or otherwise, or by reason of his conviction of a crime, but such interest or conviction may be shown for the purpose of affecting his credibility.

SEC. 318. Any party to a civil action or proceeding may compel any adverse party or person for whose benefit such action or proceeding is instituted, prosecuted or defended at the trial or by deposition, to testify as a witness, in the same manner and subject to the same rules as other witnesses.

SEC. 319. No party shall be allowed to testify by virtue of anything herein contained, where the adverse party is an executor or administrator of a deceased person, when the facts to be proved transpired before the death of such deceased person.

SEC. 320. The following persons shall be incompetent to testify: First, Persons who are of an unsound mind at the time of their production for examination. Second, Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly, but the court in its discretion may allow such children to testify, and the facts herein enumerated shall go to their credibility. Third, Husband or wife for or against each other, or concerning any communication made by one to the other during the marriage, whether called as a witness while that relation existed or afterwards. Fourth, An attorney concerning any communication made to him by his client in that relation, or his advice thereon, without the client's consent. Fifth, A clergyman or priest concerning any confession made to him, in his professional character, in the course of discipline enjoined by the church to which he belongs, without the consent of the person making the confession. Sixth, A negro, Indian, or Chinaman, where the parties to the action are white

persons, but if the parties to an action or either of the parties is an Indian, negro, or Chinaman, a negro may be introduced as a witness against such negro, an Indian against such Indian, or a Chinaman against such Chinaman. A negro within the meaning of this act is a person having one-eighth or more of negro blood, an Indian is a person having one-half or more of Indian blood, and a Chinaman is a person having one-half or more Chinese blood.

SEC. 321. The clerks of the district and probate court shall, on application of any person having a cause or any matter pending in the court, issue a subpoena for witnesses, under the seal of the court, inserting all the names required by the applicant in one subpoena, which may be served by the sheriff, or by the party, or by any other person. When a subpoena is not served by the sheriff, proof of service shall be shown by affidavit; where served by the sheriff, by his certificate; but no costs of service shall be allowed except when served by the sheriff.

or any

SEC. 322. The subpoena shall be issued as follows: First, To require attendance before a court or at a trial of an issue therein. Second, To require attendance out of court before a judge, justice, other officer authorized to administer oaths or take testimony in any matter under the laws of this Territory. It shall be issued by the judge, justice, or other officer before whom the attendance is required. Third, To require attendance before a commissioner appointed to take testimony by a court of any other state or territory.

SEC. 323. The service of the subpoena shall be by reading the same to the witness, or by leaving a copy at his usual place of abode, but such copy need not contain the name of any other wit

ness.

SEC. 324. No person shall be compelled to attend as a witness unless his fees for travel to and from the place of trial and one days' attendance there is either paid or tendered to him at the time of the service of the subpoena if demanded by him; and the person making the service shall state in the return what amount of fees was paid or tendered, and if not paid or tendered, whether a demand for the same was made or not.

SEC. 325. No person shall be compelled to attend as a witness out of the county in which he resides unless his residence is less than thirty miles from the place of trial.

SEC. 326. A person present in court, or before a judicial officer, may be required to testify in the same manner as if he were in attendance upon a subpoena issued by such officer.

SEC 327. It shall be the duty of a witness duly served with a subpoena to attend at the time appointed, with any papers under his control required by the subpoena, to answer all pertinent and legal questions, and unless sooner discharged, to remain until the testimony is closed.

SEC. 328. A witness shall answer questions legal and pertinent to the matter in issue though his answers may establish a claim against himself; but he need not give an answer that would have a tendency to subject him to punishment for a felony, nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue or to a fact from which the fact in issue would be presumed; but a witness shall answer as to the fact of his previous conviction for felony.

SEC. 329. Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe to an affidavit or deposition when required, may be punished as contempt by the court or officer issuing the subpoena or requiring the witness to be sworn, and if the witness be a party, his complaint may be dismissed or his answer stricken out.

SEC. 330. A witness disobeying a subpoena shall also forfeit to the party aggrieved the sum of one hundred dollars and all damages he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action.

SEC. 331. In case of the failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof, and other requirement of the law, may issue a warrant to the sheriff of the county to arrest the witness and bring him before the court or officer where his attendance is required.

SEC. 332. If the witness be a prisoner confined in jail or prison within this Territory, for any other cause than a sentence for felony, an order for his examination in prison upon deposition, or for his temporary removal and production before a court or officer for the purpose of being orally examined, may be made as follows: First, by the court itself in which the action or proceeding is pending. Second, By a judge of the supreme court, district court, or pro

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