such officer may retain the same until such fees are paid. Such officer shall also tax the costs of the sheriff, or other officer, who shall serve the process aforesaid, and fees of the witnesses, and may also, if directed by the persons entitled thereto, retain such deposition until the said fees are paid. SUBDIVISION 4.- Exceptions to Depositions. depositions. SECT. 369. Exceptions to depositions shall be in writing, Exceptions to specifying the grounds of objection, and filed with the papers in the cause. regarded, when. SECT. 370. No exception other than for incompetency or Exceptions irrelevancy shall be regarded, unless made and filed before the commencement of the trial. SECT. 371. The court shall, on motion of either party, hear and decide the questions arising on exceptions to depositions, before the commencement of the trial. Questions arisbefore trial. ing decided Errors in decis SECT. 372. Errors of the court in its decisions upon excep- ions waived, tions to depositions are waived unless excepted to. CHAPTER IV.. ADMISSION, INSPECTION, AND PRODUCTION OF SECT. 373. Either party may exhibit to the other or to his attorney, any time before the trial, any paper or document material to the action, and request an admission of writing in 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 it shall appear, to the satisfaction of the court, that there were good reasons for the refusal. SECT. 374. Either party, or his attorney, may demand of the adverse party, an inspection and copy, or permission to take a copy of a book, paper, or document, in his possession or under his control, containing evidence relating to the merits of the action or defence therein. Such demand shall be in writing, specifying the book, paper, or document, with sufficient particularity to enable the other party to distinguish when. Either party may demand copy of deed, writing, &c. Printed copies in volumes of law admitted as 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 a 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 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. SECT. 375. Either party, or his attorney, if required, shall deliver to the other party or his attorney, a copy of any deed, instrument, or other writing, whereon the action or defence is founded, or which he intends to offer in evidence at the trial. If 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 the pleading. SECT. 376. Printed copies in volumes of statutes, code, or statutes, code, or other written law, enacted by any other territory or state, or evidence, when. 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 territory, state, or government, shall be admitted by the courts and officers of this territory on all occasions, as presumptive evidence of such laws. The unwritten or common law of any other territory, state, or foreign government, may be proved as 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. Testimony of witness, how per petuated. Petition to contain what. CHAPTER V.- PROCEEDINGS TO PERPETUATE TESTIMONY. SECT. 377. The testimony of a witness may be perpetuated in the following manner. SECT. 378. 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 plaintiff. SECT. 379. The court or judge thereof, may forthwith make an order allowing the examination of such witnesses. The order shall prescribe the time and place of the examination, how long the parties interested shall be notified thereof, and the manner in which they shall be notified. Order for examination. Cross interrog SECT. 380. When it appears satisfactorily to the court or atories, when. judge 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 to 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 fee therefor, to be taxed in the bill of costs. SECT. 381. Such depositions shall be taken before some one authorized by law to take depositions, or before some one specially authorized by the court or judge, and shall be returned to the clerk's office of the court in which the petition was filed. Such deposi tions, before whom. given in evi SECT. 382. The court or judge, if satisfied that the depo-Court approve sitions have been properly taken, and as herein required, shall in May be approve the same and order them to be filed; and if a trial dence. be had between the parties named in the petition, or their privies 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 cannot be obtained or required; but such depositions shall be subject to the same objections Applicant pay costs. for irrelevancy and incompetency as may be made to depositions taken pending an action. SECT. 383. The applicant shall pay the costs of all proceedings under this chapter. A judgment. How given. Action dismissed, when. 3 TITLE XI. JUDGMENT. CHAPTER I. Judgment in General. II. Judgment upon Failure to Answer. III. Judgment by Confession. IV. Manner of giving and entering Judgment.-V. Conveyance by Commissioners. CHAPTER I.— JUDGMENT IN GENERAL. SECT. 384. A judgment is the final determination of the rights of the parties in action. SECT. 385. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, at its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served. SECT. 386. An action may be dismissed without prejudice to a future action. 1. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court. 2. By the court, where the plaintiff fails to appear on the trial. 3. By the court, for want of necessary parties. 4. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. 5. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases, upon the trial of the action, the decision must be upon the merits. proceed to trial, SECT. 387. In any case where a set-off or counter claim Defendant may has been presented, the defendant shall have the right of pro- when. ceeding to the trial of his claim, although the plaintiff may have dismissed the action, or failed to appear. CHAPTER II.-JUDGMENT UPON FAILURE TO ANSWER. Judgment upon failure to SECT. 388. If the taking of an account, or the proof of a fact, or the assessment of damages be necessary to enable the answer. court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the court may, with assent of the party not in default, take the account, hear the proof, or assess the damages; or may, with the like assent, refer the same to a referee or master commissioner, or may direct the same to be ascertained or assessed by a jury. If a jury be ordered, it shall be on or after the day on which the action is set for trial. CHAPTER III. JUDGMENT BY CONFESSION. SECT. 389. Any person indebted, or against whom a cause of action exists, may personally appear in a court of competent jurisdiction, and, with the assent of the creditor, or person having cause of action, confess judgment therefor; whereupon judgment shall be entered accordingly. When per mitted. to be stated. SECT. 390. The debt or cause of action shall be briefly Debt, or cause stated in the judgment, or in a writing to be filed as pleadings in other actions. proceedings for SECT. 391. Such judgment shall authorize same proceed- To authorize ings for its enforcement, as judgments rendered in actions enforcement. regularly brought and prosecuted; and the confession shall operate as a release of errors. confess judg SECT. 392. Every attorney, who shall confess judgment in If attorney any case, shall, at the time of making such confession, pro- ment. duce the warrant of attorney for making the same, to the court before which he makes the confession, and the original or a copy of the warrant shall be filed with the clerk of the court in which the judgment shall be entered. SECT. 393. If any persón be in custody in a civil action at the suit of another, no warrant of attorney executed by the person in custody, to confess judgment in favor of the person Warrant of force unless attorney of no properly witnessed. |