Sec. 466. If the witness be imprisoned in the county where the action or proceeding is pending, for a cause other than felony, his production may be required. In all other cases his examination, when allowed, shall be taken upon deposition.

Sec. 467. Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the witness may be punished as a contempt, shall be exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there, and returning there

from.

Sec. 468. The arrest of a witness, contrary to the last section, shall be void; but an officer shall not be liable to the party for making the arrest in ignorance of the facts creating the exoneration, but shall be liable for any subsequent detention of the party, if such party claim the exemption, and make an affidavit, stating: First. That he has been served with a subpoena to attend as a witness, before a court, officer, or other person; specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and, second, that he has not been thus served by his own procurement, with the intention of avoiding an arrest. Third. That he is, at the time, going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and shall exonerate him from liability for discharging the witness when arrested.

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. 469. No action for discovery of evidence shall be allowed.
Sec. 470. A party may be examined for adverse party in the
same manner as any other witness.

Sec. 471. Such examination may be rebutted.
Sec. 472. Penalty for refusal of a party to testify.

Section 469. No action to obtain a discovery under oath, in aid of the prosecution or defence 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. 470. 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 com

pelled, 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. 471. The examination of a party thus taken may be rebutted by adverse testimony.

Sec. 472. 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. 473. Affidavits to be used in this territory; before whom may be taken in this territory.

Sec. 474. If made in another state of the United States-before whom taken.

Sec. 475. If made in a foreign country-by whom taken. Sec. 476. Certificate of clerk, if taken before a judge of a court out of this territory.

Section 473. 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.

Section 474. An affidavit taken in another territory, or any state 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 territory or state, or before any notary public or judge of a court of record having a

seal.

Sec. 475. 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. 476. 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.

CHAPTER V.

OF DEPOSITIONS TAKEN IN THIS TERRITORY.

Sec. 477. Depositions of witnesses in this territory may be taken in certain cases.

Sec. 478. Depositions may be taken before a judge, etc., upon notice to the adverse party.

Sec. 479. Manner of taking depositions; may be used by either party on the trial.

Sec. 480. A deposition may be read at any stage of the action or proceeding.

Section 477. 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. 478. 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 on the adverse party previous 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. 479. 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, inclosed 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 also be read in case of the death of the witness.

Sec. 480. 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. 481. Testimony of a witness out of the territory may be taken after service of summons or issue joined.

Sec. 482. Such deposition shall be taken upon commission issued under seal, upon notice to whom to issue. Sec. 483. Proper interrogations, direct and cross, may be prepared, or may be waived by the parties. Sec. 484. Authorities and duties of commissioner.

Sec. 485. Trial not postponed except in certain cases.

Section 481. 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. 482. The deposition of a witness out of the territory shall be taken upon commission issued from the court under the seal of the court where the suit is pending, on the application of either party, upon five day's previous notice to the other. It shall be issued to a person agreed upon between 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 the territory to take affidavits and depositions in other states and territories, or to a notary public.

Sec. 483. 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. 484. 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 forwarded to him by mail or other usual channels of conveyance.

Sec. 485. 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. 486. Testimony may be perpetuated.

Sec. 487. The applicant shall present verified petition to a judge, granting and service of order.

Sec. 488. Upon due service of notice, the deposition of witness may be taken.

Sec. 489. Manner of taking deposition and filing thereof. Sec. 490. Affidavits, etc., filed with deposition, shall be prima facie proof of the facts therein stated.

Sec. 491. Manner of using such depositions, if trial be had.

Section 486. The testimony of a witness or witnesses may be taken and perpetuated as provided in this chapter.

Sec. 487. The applicant shall present to a district or 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 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