# 1862 Territory of Dakota Session Laws/Chapter 8/Title X

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TITLE X.
EVIDENCE.
CHAPTER 1.—Competency of Witnesses.
Qualifications of witnesses.Sect. 308. Every human being of sufficient capacity to understand the obligations of an oath, is a competent witness in all cases, both civil and criminal, except as herein otherwise declared; and no person shall be disqualified as a witness in any civil action or proceeding, by reason of his or her interest in the result of the same, as a party or otherwise; but such interest may be shown for the purpose of affecting his or her credibility.
No party to suit can testify, when.Sect. 309. No party to a suit shall be allowed to testify in his own behalf, by virtue of the last section, when the adverse party is the executor, administrator, or heir of a deceased person, where the facts to be proved transpired before the death of such deceased person.
Facts which have excluded testimony may lessen credibility.Sect. 310. Facts which have heretofore caused the exclusion of testimony may still be shown for the purpose of lessening its credibility.
​Husband and wife testify, when.Sect. 311. The husband can, in no case, be a witness for or against the wife, nor the wife for or against the husband, unless the contract or facts to be sworn to are in the exclusive knowledge of such husband or wife, as agent or otherwise, in which case but one can testify, and unless in a criminal proceeding for a crime committed by the one against the other.
Same.Sect. 312. Neither husband or wife can be examined in any case as to any communication made by the one to the other, while married, nor as to any fact learned in consequence of the marriage relation; nor shall they, after such relation ceases, be permitted to reveal, in testimony, any such communication or fact.
Attorney, physician, minister, &c., not allowed to disclose confidential communication.Sect. 313. No attorney, counsellor, physician, surgeon, minister of the gospel, or priest, shall be allowed, in giving testimony, to disclose any confidential communication, properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline.
Last prohibition not applicable when waived.Sect. 314. The prohibitions of the last section do not apply to cases where the party, in whose favor they are enacted, waives the rights thereby conferred.
Public officer cannot be examined, when.Sect. 315. A public officer cannot be examined as to communications made to him in official confidence, when the public interests would suffer by the disclosure.
Witness not excused from answering, when.Sect. 316. A witness is not excused from answering a question upon the mere ground that he would be thereby subjected to a civil liability.
Not compelled to answer, when.Sect. 317. But when the matter sought to be elicited would tend to render him criminally liable, or to expose him to public ignominy, he is not compelled to answer, except as provided in the next section.
Witness may be questioned as to previous convictions of felony.Sect. 318. A witness may be interrogated as to his previous convictions for a felony. But no other proof of such conviction is competent except the record thereof.
When parts of acts, writing, &c., are given in evidence, the remainder may be called out.Sect. 319. When the part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; thus, when a letter is read, all other letters on the same subject between the same parties may be given. And when a ​detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, or writing, which is necessary to make it fully understood, or to explain the same, may also be given in evidence.
When instrument partly written and partly printed.Sect. 320. When an instrument consists partly of written and partly of printed form, the former controls the latter, where the two are inconsistent.
If terms of agreement misunderstood.Sect. 321. When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it.
Books, maps, and charts presumptive evidence.Sect. 322. Historical works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, are presumptive evidence of facts of general notoriety or interest.
When witness denies his signature.Sect. 323. When a subscribing witness denies or does not recollect the execution of the instrument to which his name is subscribed as such witness, its execution may be proved by other evidence.
Evidence of handwriting by comparison.Sect. 324. Evidence respecting handwriting may be given by comparisons made by experts or by the jury with writings of the same persons, which are proved to be genuine.
Entries and writings of person deceased.Sect. 325. The entries and other writings of a person deceased, made at or near the time of the transaction, and in a position to know the facts therein stated, are presumptive evidence of such facts, when the entry was made against the interest of the person so making it, or when made in a professional capacity, or in the ordinary course of professional conduct, or when made in the performance of a duty specially enjoined by law.
Books of accounts receivable in evidence, when.Sect. 326. Books of account, containing charges by one party against the other, made in the ordinary course of business, are receivable in evidence only under the following circumstances, subject to all just exceptions to their credibility: 1. The books must show a continuous dealing with persons generally, or several items of charges at different times against the other party, in the same book. 2. It must be shown by the party's oath, or otherwise, that they are his books of original entries. 3. It must be shown, in like manner, that the charges were made at or near the time of the transaction therein entered, unless satisfactory reasons appear for ​not making such proof. 4. The charges must also be verified by the party or the clerk who made the entries, to the effect that they believe them just and true, or a sufficient reason must be given why the verification is not made.
Private writing, acknowledged properly, admissible evidence.Sect. 327. Every private writing, except a last will and testament, after being acknowledged or proved and certified in the manner prescribed for the proof of acknowledgment of conveyances of real property, may be read in evidence without further proof.
Judge of court competent witness.Sect. 328. The judge of the court is a competent witness for either party, and may be sworn upon the trial. But in such a case it is in his discretion to order the trial to be postponed or suspended, and to take place before another judge.
Protest of notary public evidence, when.Sect. 329. The usual protest by a notary public, without proof of his signature or notarial seal, is evidence of the dishonor and notice of a bill of exchange or promissory note.
CHAPTER II.—Means of producing Witnesses.
Subpœna, how issued and served.Sect. 330. The clerks of the several district courts, and judges of the other courts, shall, on application of any person having a cause or any matter pending in court, issue a subpœna for witnesses under the seal of the court, inserting all the names required by the applicant in one subpœna, which may be served by any person not interested in the action, or by the sheriff, coroner, or constable; but when served by any person other than a public officer, proof of service shall be shown by affidavit; but no costs of serving the same shall be allowed except when served by an officer.
Subpœna contains, what.Sect. 331. The subpœna shall be directed to the person therein named, requiring him to attend at a particular time and place, to testify as a witness; and it may contain a clause, directing the witness to bring with him any book, writing, or other thing under his control, which he is bound by law to produce as evidence.
When issued by officer taking depositions.Sect. 332. When the attendance of the witness before any officer, authorized to take depositions, is required, the subpœna shall be issued by such officer.
How served.Sect. 333. The subpœna shall be served either by reading or by copy, delivered to the witness, or left at his usual place ​of residence; but such copy need not contain the name of any other witness.
Witness obliged to attend, where.Sect. 334. A witness shall not be obliged to attend for examination on the trial of a civil action, except in the county of his residence, nor to attend to give his deposition out of the county where he resides, or where he may be when the subpœna is served upon him.
Witness may demand fees for attending.Sect. 335. A witness may demand his travelling fees, and fee for one day's attendance, when the subpœna is served upon him, and if the same be not paid, the witness shall not be obliged to obey the subpœna. The fact of such demand and non-payment shall be stated in the return.
Contempt.Sect. 336. Disobedience of a subpœna, or a refusal to be sworn, or to answer as a witness, or to subscribe a deposition, when lawfully ordered, may be punished as a contempt of the court or officer, by whom his attendance or testimony is required.
When witness fails to attend in obedience to subpœna.Sect. 337. When a witness fails to attend in obedience to a subpœna (except in case of a demand and failure to pay his fees), the court or officer before whom his attendance is required, may issue an attachment to the sheriff, coroner, or constable of the county, commanding him to arrest and bring the person therein named, before the court or officer, at a time and place to be fixed in the attachment, to give his testimony and answer for the contempt. If the attachment be not for immediately bringing the witness before the court or officer, a sum may be fixed in which the witness may give an undertaking with surety for his appearance. Such sum shall be indorsed on the back of the attachment, and if no such sum is fixed and indorsed, it shall be one hundred dollars. If the witness be not personally served, the court may, by a rule, order him to show cause why an attachment should not issue against him.
Punishment for contempt.Sect. 338. The punishment for the contempt mentioned in section three hundred and thirty-six, shall be as follows: When the witness fails to attend, in obedience to the subpœna (except in case of a demand and failure to pay his fees), the court or officer may fine the witness in a sum not exceeding fifty dollars. In other cases, the court or officer may fine a witness in a sum not exceeding fifty nor less than five dollars, or may imprison in the county jail, there to ​remain until he shall submit to be sworn, testify, or give his deposition. The fine imposed by the court, and that imposed by the officer, shall be paid into the common school fund of the county. The witness shall also be liable to the party injured, for any damages occasioned by his failure to attend, or his refusal to be sworn, testify, or give his deposition.
Witness discharged from imprisonment, when.Sect. 339. A witness so imprisoned by an officer before whom his deposition is being taken, may apply to a judge of the supreme court, district court, or county court, who shall have power to discharge him, if it appear that his imprisonment is illegal.
Attachment or order must be under seal of court or officer, &c.Sect. 340. Every attachment for the or order of commitment to prison of a witness, by a court or officer, pursuant to this chapter, must be under the seal of the court or officer, if he have an official seal, and must specify particularly the cause of the arrest or commitment; and if the commitment be for refusing to answer a question, such question must be stated in the order. Such order of commitment may be directed to the sheriff, coroner, or any constable of the county where such witness resides or may be at the time, and shall be executed by committing him to the jail of such county, and delivering a copy of the order to the jailer.
Testimony of a person in prison.Sect. 341. A person confined in any prison in this territory may, by order of any court of record, be required to be produced for oral examination in the county where he is imprisoned; but in all other cases his examination must be by deposition.
In whose custody, while deposition is taken.Sect. 342. While a prisoner's deposition is being taken, he shall remain in the custody of the officer having him in charge, who shall afford reasonable facilities for the taking of the deposition.
Witness not liable to be sued, when.Sect. 343. A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county while going, returning, or attending in obedience to a subpœna.
Witness may demand fees daily, in advance.Sect. 344. At the commencement of each day after the first day, a witness may demand his fees, for that day's attendance, in obedience to a subpœna, and if the same be not paid, he shall not be required to remain.
Witness to be sworn, how.Sect. 345. Before testifying, the witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. ​The mode of administering an oath shall be such as is most binding upon the conscience of the witness.
CHAPTER III. Mode of taking the Testimony of Witnesses.—Article 1. Affidavit.—2. Deposition.
Testimony, how taken.Sect. 346. The testimony of witnesses is taken in three modes: 1. By affidavit. 2. By deposition. 3. By oral examination.
An affidavit.Sect. 347. An affidavit is a written declaration under oath, made without notice to the adverse party.
A deposition.Sect. 348. A deposition is a written declaration under oath, made upon notice of the adverse party for the purpose of enabling him to attend and cross-examine; or upon written interrogatories.
Oral examination.Sect. 349. An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness.
ARTICLE I.—Affidavit.
Affidavit may be used, how.Sect. 350. An affidavit may be used to verify a pleading, to prove the service of a summons, notice, or other process in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings or upon a motion, and in any other case permitted by law.
How made and authenticated.Sect. 351. An affidavit may be made in and out of this territory before any person authorized to take depositions, and must be authenticated in the same way, except as provided in section one hundred and eight.
Subdivision 1.—When to be used.
Depositions be used, how.Sect. 352. The deposition of any witness may be used only in the following cases: 1. When the witness does not reside in the county where the action or proceeding is pending, or is sent for trial, by change of venue; or is absent ​therefrom. 2. When, from age, infirmity, or imprisonment, the witness is unable to attend court, or is dead. 3. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required.
Commence taking, when.Sect. 353. Either party may commence taking testimony by depositions, at any time after service upon the defendants.
Subdivision 2.—Officers who may take them.
Taken by whom in territory.Sect. 354. Depositions may be taken in this territory, before a judge or clerk of the supreme court, the district court or county court, before a justice of the peace, notary public, mayor, or chief magistrate of any city or town corporate, or before a master commissioner, or any person empowered by a special commission; but depositions taken in this territory, to be used therein, must be taken by an officer or person whose authority is derived within the territory.
Taken by whom out of territory.Sect. 355. Depositions may be taken out of the territory by a judge, justice, or chancellor of any court of record, a justice of the peace, notary public, mayor or chief magistrate of any city or town corporate, a commissioner appointed by the governor of this territory to take depositions, or any person authorized by a special commission from this territory.
Officer taking must not be interested.Sect. 356. The officer before whom depositions are taken, must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding.
Commissions may be granted to take depositions, by whom and how.Sect. 357. Any court of record of this territory, or any judge thereof, is authorized to grant a commission to take depositions within or without the territory. The commission must be issued to a person or persons therein named, by the clerk, under the seal of the court granting the same, and depositions under it must be taken upon written interrogations, unless the parties otherwise agree.
Subdivision 3.—Manner of taking and authenticating them.
Notice of taking to be given, how.Sect. 358. Prior to the taking of any deposition, unless taken under a special commission, a written notice, specifying the action or proceeding, the name of the court or tribunal in which it is to be used, and the time and place of taking the same, shall be served upon the adverse party, his agent, or attorney of record, or left at his usual place of abode. The notice shall be served so as to allow the adverse party ​sufficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sundays and the day of service, and the examination may, if so stated in the notice, be adjourned from day to day.
Notice by publication.Sect. 359. When the party against whom the deposition is to be read, is absent from, or a non-resident of the territory, and has no agent, or attorney of record therein, he may be notified of the taking of the deposition by publication. The publication must be made three consecutive weeks, in some newpaper printed in the county where the action or proceeding is pending, if there be any printed in such county; and if not, in some newspaper printed in this territory, of general circulation in that county. The publication must contain all that is required in a written notice, and may be proved in the manner prescribed in section seventy-two.
Deposition to be written, in whose presence, signed.Sect. 360. The deposition shall be written in the presence of the officer taking the same, either by the officer, the witness, or some disinterested person, and subscribed by the witness.
To be sealed and remain so, how long.Sect. 361. The deposition so taken shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the court where the action or proceeding is pending. It shall remain under seal until opened by the clerk, by order of the court, or at the request of a party to the action or proceeding, or his attorney.
Depositions thus taken, evidence in what cases, and how.Sect. 362. Depositions taken pursuant to this article shall be admitted in evidence, on the trial of any civil action or proceeding, pending before any justice of the peace, mayor, or other judicial officer of a city, or town corporate, or before any arbitrators or referees, and such deposition shall be sealed up, indorsed with the title of the action or proceeding, the name of the officer taking the same, and addressed and transmitted by such officer to such justice, mayor, or other judicial officer, arbitrator, or referees.
May be read in any stage of action.Sect. 363. When a deposition has once been taken, it may be read in any stage of the same action or proceeding, or in any other action or proceeding upon the same matter, between the same parties, subject, however, to all such exceptions as may be taken thereto under the provisions of this title.
​Depositions sufficiently authenticated, when.Sect. 364. Depositions taken pursuant to this article, by any judicial or other officer herein authorized to take depositions, having a seal of office, whether resident in this territory or elsewhere, shall be admitted in evidence upon the certificate and signature of such officer, under the seal of the court of which he is an officer, or his official seal, and no other or further act or authentication shall be required. If the officer taking the same have no official seal, the deposition, if not taken in this territory, shall be certified and signed by such officer, and shall be further authenticated, either by parol proof, adduced in court, or by the official certificate and seal of any secretary or other officer of state keeping the great seal thereof, or of the clerk or prothonotary of any court having a seal, attesting that such judicial or other officer was, at the time of taking of the same, within the meaning of this chapter, authorized to take the same. But, if the deposition be taken within this territory by an officer having no seal, or within or without this territory, under a special commission, it shall be sufficiently authenticated by the official signature of the officer or commissioner taking the same.
Officer's certificate to contain, what.Sect. 365. The officer taking the deposition shall annex thereto a certificate showing the following facts: That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth. That the deposition was reduced to writing by some proper person (naming him). That the deposition was written and subscribed in the presence of the officer certifying thereto. That the deposition was taken at the time and place specified in the notice.
The court must be satisfied that witness cannot be procured.Sect. 366. When a deposition is offered to be read in evidence, it must appear to the satisfaction of the court, that for any cause specified in section three hundred and fifty-two, the attendance of the witness cannot be procured.
Depositions filed one day before trial.Sect. 367. Every deposition intended to be read in evidence on the trial, must be filed at least one day before the trial.
Fees for taking depositions.Sect. 368. The following fees shall be allowed for taking depositions in the territory, namely: Swearing each witness, five cents; for each subpœna, attachment, or order of commitment, fifty cents; for each hundred words contained in such deposition and certificate, ten cents and no more; and ​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.
Exceptions to depositions.Sect. 369. Exceptions to depositions shall be in writing, specifying the grounds of objection, and filed with the papers in the cause.
Exceptions regarded, when.Sect. 370. No exception other than for incompetency or irrelevancy shall be regarded, unless made and filed before the commencement of the trial.
Questions arising decided before 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.
Errors in decisions waived, when.Sect. 372. Errors of the court in its decisions upon exceptions to depositions are waived unless excepted to.
CHAPTER IV.—Admission, Inspection, and Production of Documents, and General Provisions.
Papers and documents in evidence, and their genuineness.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.
Either party may demand of the other inspection or copy of book, paper, or document.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 ​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.
Either party may demand copy of deed, writing, &c.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.
Printed copies in volumes of statutes, code, or law admitted as evidence, when.Sect. 376. Printed copies in volumes of statutes, code, or other written law, enacted by any other territory or state, or 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.
CHAPTER V.—Proceedings to Perpetuate Testimony.
Testimony of witnesses, how perpetuated.Sect. 377. The testimony of a witness may be perpetuated in the following manner.
Petition to contain what.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.
Order for examination.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.
Cross interrogatories, when.Sect. 380. When it appears satisfactorily to the court or 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.
Such depositions, before whom.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.
Court approve and order them filed. May be given in evidence.Sect. 382. The court or judge, if satisfied that the depositions have been properly taken, and as herein required, shall approve the same and order them to be filed; and if a trial 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 ​for irrelevancy and incompetency as may be made to depositions taken pending an action.
Applicant pay costs.Sect. 383. The applicant shall pay the costs of all proceedings under this chapter.