Action to ob tain discov ery of evi dence. Examination of adverse party. Rebuttal of testimony CHAPTER III. Of the Examination of Parties to an Action or Proceeding, and of Persons for whose Immediate Benefit such Action or Proceeding is Prosecuted or Defended. SEC. 647. No action to obtain a discovery under oath, in aid of the prosecution or defense of another action or proceeding, shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner provided by this and the foregoing chapter. SEC. 648. A party to an action or proceeding may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties; and for that purpose may be compelled, in the same manner, and subject to the same rules of examination, as any other witness, to testify at the trial, and he may be examined on a commission. SEC. 649. The examination of a party thus taken taken under may be rebutted by adverse testimony. last section. Remedy in case adverse party refuse to testify. Affidavit, be fore whom taken in ter ritory. SEC. 650. If an adverse party refuse to attend or testify at the trial, or to give his deposition before trial, or upon a commission when required, his complaint or answer may be stricken out, and judgment be taken against him; and he may be also, in the discretion of the court, proceeded against as in other cases for contempt. CHAPTER IV.-On Affidavit. SEC. 651. 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 in this territory. SEC. 652. An affidavit taken in another territory, or any state of the United States, to be used in this terriBefore whom tory, shall be taken before a commissioner appointed by the governor of this territory to take affidavits and depositions in such other territory or state, or before any notary public or judge of a court of record having a seal. territory. Before whom taken in for SEC. 653. 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 eign country. before any judge of a court of record, having a seal, in such foreign country. SEC. 654. When an affidavit is taken before a judge of a court in another state, or in 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. forudge out of territory, his signature ticated then to be Where affida SEC. 655. If such affidavit be made in an action or special proceeding pending in a court, it may be filed with the court or the clerk thereof. If not so made, it vit to be filed. may be filed with the clerk of the county where the newspaper is printed. In either case the original affidavit, or a copy thereof, certified by the judge of the Is prima facie court or clerk having it in custody, is prima facie evidence of the fact stated therein. CHAPTER V.-Of Depositions taken in this Territory. SEC. 656. The testimony of a witness in 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 is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended. Second. When the witness resides out of the county in which his testimony is to be used. Third. 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. Fourth. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend. SEC. 657. Either party may have the deposition taken of a witness in this territory, before any judge or evidence. Deposition of winess with in the territo ry. Cases when can be taken. clerk, or any justice of the peace, or notary public, in Either party this territory, on serving on the adverse party previous may have ta ken. Notice for and time gov erning. Manner of notice of the time and place of 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 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. 658. 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 taking and may agree upon, and either delivered by the judge or returning 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 deposition. 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 also be read in case of the death of the witness. SEC. 659. When a deposition has once been taken it may be read in any stage of the same action or proceeding by either party, and shall then be deemed evidence of the party reading it. CHAPTER VI.- Of Depositions taken out of this Territory. SEC. 660. 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. 661. When the testimony of any non-resident witness or witnesses shall be necessary in any civil cause, depending in any court of law or equity in this territory, it shall be lawful for the party wishing to use the same, on giving to the adverse party, or his attorney, five days previous notice, together with a copy of the interrogatories intended to be put to such witness or witnesses, to sue out from the proper clerk's office a commission, under the seal of the court, to be directed to any person as commissioner, or to any judge or justice of the peace, clerk of a court of record, or notary public of the county or city in which such witness or witnesses may reside, authorizing and requiring him to cause such witness or witnesses to come before him, at such place and time as he may designate and appoint, and faithfully to take his, her, or their deposition, or depositions, upon all such interrogations as may be enclosed with, or attached to, such communication, both on the part of the plaintiff and the defendant, and none others; and to certify the same when taken, together with the said commission and interrogations, into the court in which such cause may be depending, with the least possible delay. If issued to any country out of the United States, it may be directed to a minister, ambassador, consul, vice-consul, or consular agent of the United States, in such country; or to any person agreed upon by the parties. SEC. 662. Every examination and deposition which shall be taken and returned according to the provisions May be read of this act, may be read in evidence in the cause in which it shall be taken, with the like effect as if such witness had been present, and examined by parol in open court, on the trial or hearing thereof. in evidence on trial. May be read SEC. 663. All depositions taken in pursuance hereof, by either par when returned into court, may be read by either party, on the trial of the cases to which they relate. ty on trial. Perpetuation CHAPTER VII.-Proceedings to Perpetuate Testimony. SEC. 664. The testimony of a witness may be taken of testimony. and perpetuated, as provided in this chapter. Procedure to perpetuate testimony. SEC. 665. The applicant must produce to a district or a probate judge, a petition, verified by the oath of the applicant, stating: First. That the applicant expects to be a party to an action in a court in this territory, and in such case the names of the persons whom he expects will be adverse parties; or, Second. That the proof of some fact is necessary to perfect the title to property in which he is interested, or to establish marriage, descent, heirship, or any other matter which it 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 of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved. The judge to whom such petition is presented must make an order allowing the examination, and designating the officer before whom the same must be taken, and |