New trial not

granted on a ness of dam

count of small

ages.

When appli

be made.

party aggrieved, for any of the following causes affecting materially the substantial rights of such party:

First, Irregularity in the proceedings of the court, jury, referee or prevailing party, or any order of the court or referee, or of abuse of discretion, by which the party was prevented from having a fair trial;

Second, Misconduct of the jury or prevailing party;

Third, Accident or surprise which ordinary prudence could not have guarded against;

Fourth, Excessive damages, appearing to have been given under the influence of passion or prejudice;

Fifth, Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property;

Sixth, That the verdict, report or decision, is not sustained, by sufficient evidence, or is contrary to law;

Seventh, Newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at trial;

Eighth, Error of law occuring at the trial, and excepted to by the party making the application.

SEC. 307. A new trial shall not be granted on account of the smallness of the damages in an action for an injury to the person or reputation, nor any other action where the damages shall equal the actual pecuniary injury sustained.

SEC. 308. The application for a new trial must be made at the cation must term the verdict, report or decision is rendered, and except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.

How applica

made.

SEC. 309. The application must be by motion, upon written tion must be grounds, filed at the time of making the motion. The causes enumerated in subdivisions two, three and seven of section three hundred and six, must be sustained by affidavits showing their truth, and may be controverted by affidavits.

ter term.

New trial af- SEC. 310. Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may be made by petition, filed as in other cases, on which a summons shall issue, be returnable, and served, or publication made, as prescribed in section sixty-eight. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered.

Damages recoverable.

General Provisions.

SEC. 311. Whenever damages are recoverable, the plaintiff

may claim and recover any rate of damages to which he may entitled for the cause of action established.

be

SEC. 312. The provisions of this title respecting trials by jury, apply, so far as they are in their nature applicable, to trials by the

court.

SEC. 313.

Time of Trial.

The clerks of courts of record shall keep at least five Time of trial. books, to be called the appearance docket, the trial docket, the journal, the record, and execution docket.

ter actions on appearance docket.

SEC. 314. On the appearance docket he shall enter all actions Clerk shall en in order in which they are brought, the date of the summons, the time of the return thereof by the officer, and his return thereon, the time of filing the petition, all subsequent pleadings. SEC. 315. The trial docket shall be made out by the clerk of Trial docket. the court at least twelve days before the first day of each term of the court, and the actions shall be set for particular days, in the order in which the issues were made up, whether of law or of fact, and so arranged that the cases set for each day shall be tried as nearly as may be on that day. For the purpose of arranging said docket, an issue shall be considered as made up when either party is in default of pleading.

the trial dock.

SEC. 316. The trial of an issue of fact, and the assessment of Trials shall proceed in the damages in any case, shall be in the order in which they are placed order they are on the trial docket, unless by consent of the parties or order of arrangedor the court, they are continued or placed at the foot of the docket. et. The time of hearing all other cases shall be in the order in which they are placed on the docket, unless the court, in its discretion, shall otherwise direct. The court may, in its discretion, hear at any time a motion, and may, by rule, prescribe the time for hearing motions.

term.

SEC. 317. Actions shall be triable at the first term of the court, shall be tried after the issues therein, by the times fixed for pleading are, or at the first should have been, made up; and when, by the times fixed for pleading, the issues are, or should have been, made up during a term, such actions shall be triable at that term. When the issues are, or should have been, made up, either before or during a term of court, but after the period for preparing a trial docket of such term, the clerk, if required by the court, shall place such actions on the trial docket of that term.

SEC. 318. The clerk shall make out a copy of the trial docket Bar docket. for the use of the bar before the first day of the term of the

court.

TITLE X.

Evidence-Competency of Witnesses.

SEC. 319. No person shall be disqualified as a witness, in any Witnesses. civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.

SEC. 320. No party shall be allowed to testify by virtue of seetion three hundred and nineteen when the adverse party is the

guardian of an idiot, or a lunatic, or a deaf and dumb person, or the executor or administrator of a deceased person, or the guardian of a child or children of a deceased person, when the facts to be proved transpired before the death of such deceased persons, except in suits upon contracts which shall have been entered into by deceased persons, by agents, in which cases, if the agent be a witness, the opposite party may testify as to all that transpired between such party and the agent in relation to such contract, and the making of the same; excepting, also, cases where the claim or defense is founded on book account, then the party shall be permitted to testify that the entries are in his handwriting, that the book containing the same is his book of original entries, and if the original entries in said book of accounts have been made by a person who at the time of such trial is deceased, or a disinterested person, who is a non-resident of the Territory, on proof of such decease and non-residence, and that said entries are in the handwriting of such person, or such proof by the party as hereinbefore provided, then it shall be competent to admit said book of original entries as evidence, the weight to be given to such evidence in either case, however, being left to the court or jury to determine; and in all actions by or against a surviving partner or partners, or a surviving joint contractor or contractors, any party to the action shall be incompetent as a witness to testify to transactions which took place with, or declarations or admissions made by the deceased partner, or joint contractor, in the Depositions. absence of surviving partner or joint contractor. The deposition

Persons incompetent to testify.

of a party shall not be used in his own behalf, unless the legal notice required in the cases where depositions are to be taken shall also specify that the deposition to be taken is that of the party; Provided, That if the deposition of a party be taken in any pending suit, and such party shall die before the trial thereof, it shall be lawful for the opposite party to testify as to all matters contained in said deposition.

SEC. 321. The following persons shall be incompetent to testify:

First, Persons who are of unsound mind at the time of their production for examination;

Second, Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly;

Third, Husband and wife, for or against each other, or concerning any communication made by one to the other, during the marriage, whether called as a witness while that relation subsisted, or afterwards, except in actions where the wife, were she a femme sole, would be plaintiff or defendant; in which action the wife may testify. In such case either the husband or wife may testify, but not both;

Fourth, An attorney, concerning any communication made to him by his client, in that relation, or his advice thereon, without the client's consent;

Fifth, A clergyman or priest, concerning any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs, without the consent of the person making the confession;

Sixth, No person who would, if a party, be incompetent to. testify under the provisions of section three hundred and twentyone, shall become competent by reason of an assignment of his claim.

SEC. 322. If a person offer himself as a witness, that is to be deemed a consent to the examination also of an attorney, clergyman or priest, on the same subject, within the meaning of the last two sub-divisions of the preceding section.

Means of Producing Witnesses.

ducing wit

SEC. 323. The clerks of the several courts, and judges of the Means of proprobate courts, shall, upon application of any person having a nesses. cause or matter pending in the court, issue a subpoena for witnesses under the seal of the court, inserting all the names required by the applicant in one subpoena, which may be served by the sheriff, coroner, or any constable of the county, or any other person. When a subpoena is not served by a sheriff, coroner or constable, proof of the service shall be shown by affidavit; but no costs of service of the same shall be allowed, except when served by an officer.

SEC. 324. The subpoena shall be directed to the person therein The subpœna. 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.

SEC. 325. When the attendance of a witness before any officer authorized to take depositions is required, the subpoena shall be issued by the officer.

SEC. 326. The subpoena shall be served either by reading, or Subpoena, how by copy delivered to the witness or left at his usual place of resi- served. dence; but such copy need not contain the name of any other

witness.

tend, except.

SEC. 327. A witness shall not be obliged to attend for examin- A witness not ation on the trial of a civil action, except in the county of his obliged to atresidence, unless in case of change of venue, nor attend to give his deposition out of the county where he resides, or where he may be when the subpoena is served upon him.

SEC. 328. A witness may demand his traveling fees, and fee witness may for one day's attendance, when the subpoena is served upon him, demand fees. and if the same is not paid, the witness shall not be obliged to obey the subpoena. The fact of such demand and non-payment

shall be stated in the return.

contempt.

SEC. 329. Disobedience of a subpoena or refusal to be sworn, Disobedience or to answer as a witness, or to subscribe a deposition, when law- of witness is fully ordered, may be punished as a contempt of the court or officer by whom his attendance or testimony is required.

SEC. 330. When a witness fails to attend in obedience to a Attachment may issue for subpoena, (except in case of a demand and failure to pay his fees,) witness. the court or officer before whom his attandance 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 con

The punishment for such contempt.

A witness im

apply to be discharged.

tempt. If the attachment be not for immediately bringing the witness before the court or officer, a sum shall be fixed in which the witness may give an undertaking with surety for his appearance. Such sum shall be endorsed on the back of the attachment, and if no sum is so 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.

SEC. 331. The punishment for the contempt mentioned in section three hundred and twenty-nine shall be as follows: When a witness fails to attend in obedience to the subpoena, (except in case of a demand and failure to pay his fees,) the court or officers may fine the witness in a sum not exceeding fifty dollars. In other cases, the court or officer may fine the witness in a sum not exceeding fifty dollars and may imprison him in the county jail, there to remain until he shall submit to be sworn, to testify, or give his deposition. The fine imposed by the court shall be paid into the county treasury, and that imposed by the officer shall be for the use of the party for whom the witness was subpoenaed. 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, to testify, or give his deposition.

SEC. 332. A witness so imprisoned by an officer before whom prisoned may the deposition is being taken, may apply to a judge of the supreme court, district court, or probate court, who shall have power to discharge him if it appears that his imprisonment is illegal.

Attachment must be under

seal and specify cause, etc.

A person imprisoned may

SEC. 333. Every attachment for the arrest or order of commitment to prison of a witness by a court or officer, pursuant to this title, 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 and commitment, and may be directed to the sheriff, coroner or any constable of the county where the 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 jailor.

SEC. 334. A person confined in any prison in this Territory, be produced may, by order of any court of record, be required to be produced, for examina- for oral examination in the county where he is imprisoned; but in all other cases, his examination must be by deposition.

tion.

Prisoner in

SEC. 335. While a prisoner's deposition is being taken, he custody while shall remain in custody of the officer having him in charge, who is being taken shall afford reasonable facilities for the taking of the deposition. Witness not SEC. 336. A witness shall not be liable to be sued in a county in sued in coun- which he does not reside, by being served with a summons in does not re- such county, while going, returning or attending in obedience to the subpoena.

ty where he

side.

Witness may

SEC. 337. At the commencement of each day after the first demand fees. day, a witness may demand his fees for that day's attendance in obedience to a subpoena, and if the same be not paid, he shall not be required to remain.

Witness must be sworn.

SEC. 338. Before testifying, the witness shall be sworn to testify the truth, the whole truth and nothing but the truth. The