, 1854-07-08

commission issued by the clerk, under the
seal of the court, upon an order of the court
or judge thereof, which order may be
made on the application Of either party,
upon giving to the adverse party, or his at
torney, ten days previous notice in writing,
together with copy of the interrogatories
intended TO be put to such witness. 1t shall
be issued TO person or persons, not 'ex-
ceeding three in number, agreed upon by
the parties or their attorneys, or if they do
not agree, to any Judge, justice Of the peace,
notary public, or other competent person,
selected by the court or Judge granting the
order for the commission. '."
Sec. 1924. Such proper interrogatories,
as well on part Of the plaintiff as on part Of
the defendant, as the respective parties may
prepare to be settled, if they disagree as to
form by the court or judge thereof grant
ing the order for the commission, shall be
annexed to the commission or where the
parties agree to that mode, the examina-
ton may be without written interrogatories
Sec. 1926. The commission shall author
ize the commissioner or Commissioners to
administer an oath to the witness, and to
take his deposition in answer to the several
inteTogatories annexed to such commission,
or when the examination is 10 be without
interrogatories, in respect to the question
in dispute, 10 certify the deposition to the
court, and to direct it to the clerk of the
court, or such other person designated or
agreed upon, and toward it to him by mail
or other usual channel Of conveyance.
Sec. 1926. A trial or other proceeding
shall not be postponed by reason of com
mission not returned except upon affidavit
or other evidence satisfactory to the court
that the testimony Of the witness is neces-
sary and that proper diligence has been
used to obtain Il.
OF PROCEEDINGS TO PERPEruA1E TESTIMONY.
Sec. 1921. When any person shall be
desirous to perpe,uate the testimony Of any
witness, be shall make statement in wri-
ting setting forth briefly and substantially
his title, claim or interest in or to the subject
concerning which be desires to perpetnate
the evidence, and the names Of all persons
interested or supposed to be interested there
in, and also the name Of the witness proposed
to be examined which statement shall be
under oath aud fled in the district court.
If the subject Of the proposed deposition
relate to real estate within this territory
the statement shall be fled in the county
where the lands or any part thereoflie, 9TH
erwiso in the county where the parties in
terested or some Of them reside. Upon
such statement an application may be made
to such court or judge thereof 10 allow
the examination Of such witness.
Sec. 1928. The court or judge shall an
point time and place for hearing such ap-
plication and shall order notice thereof ana
Of the statement TO be served or III persoas
mentioned therein as adversely interested in
the matter. The notice shall be served
personally on all those living in the Terri
tory at least twenty days before the time
of hearing the application Upon those
who are not residents Of the territory il shall
be served by publication or otherwise In
the same manner as summons is served
upon a nonresident. oa Or HF
Sec. 329. If upon such hearing Of the
parties or Of the applicant alone, should no
adverse party appear, the court or judge
shall be satisfied that there is sufieient
cause for taking the deposition, an order
shall be made allowing the examination Of
the witness, and such court or Judge shah
direct commission 10 issue therefor, IN
like manner as commission to take the
testimony Of witnesses in other cases. 10
Sec. $50. The deposition of such wit
ness whether residing in this territory or
not shall be taken upon written interroga-
tories filed by the applicant and cross In
teTogatories fled by any party adversely
interested if he shall think it, and it shall
be taken and returned substantially In the
same manner as if taken upon commission
to be used in any cause pending in the same
court. N a
Sec. 3Sl. The deposition when re-
turned shall be filed in the Office Of the
clerk of the court by whom the commission
was issued and If trial be had between
the person at whose request the deposition
was taken and the persons named in the
statement or any of them or their success
sors in interest, upon proof Of the death or
insanity Of the wilpess or of his inability to
attend the trial by reason Of age, sickness
or settled infirnity, the deposition or a GER
tilted copy thereof may be used by either
party subject to all legal objections. But
if the parties attend at the examination no
objection to the form of the interrogatory
shall be made at the trial unless The sane
were taken at the time Of the examination.
PROVISIONS RELATING TO RECORDS, DOCUMENTS,
AND cTHER WRITINGS. w
Sec. 3S9. Any court in which an action
is pending, or judge thereof, may upon
notice, order either party to give to the
other, within specified time, an inspection
and copy, or permission to take a copy, Of
any book, document, or paper in his posses
sion, or under bis control, containing evil
dence relating TO the merits Of the action,
or the defence therein If comnliance with