CHAPTER V.

PROCEEDINGS TO PERPETUATE TESTIMONY.

SEC. 354. The testimony of a witness may be taken and perpetuated as provided in this chapter of this act.

SEC. 355. The applicant shall produce to the district judge, or to a probate judge, an affidavit stating: First, That the applicant expects to be a party to an action in a court of this Territory, and in such case the name or names of the 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 marriage, descent, heirship, or any other matter which may hereafter be anticipated, or if anticipated he may not know the parties to the suit; and, Third, The name or names of the witness or witnesses to be examined at his or their place of residence, and a general outline of the facts expected to be proved, the judge to whom such petition is presented shall make an order allowing the examination and prescribing the notice to be given, which notice, if the parties are known and reside in this Territory, shall be personally served on them, and if unknown such notice shall be served on the clerk of the county where the property to be affected by such evidence is situated, and a notice thereof to be published in some newspaper to be designated by the judge making the order.

SEC. 356. Upon proof of the service of the notice as provided in the last section, it shall be the duty of the judge before whom the depositions are ordered to be taken, to proceed to take the depositions of the witnesses named in such petition upon the facts therein set forth, and the taking of the same may be continued from time to time in the discretion of the judge.

SEC. 357. The examination shall be by question and answer, unless the parties otherwise agree. The depositions, when taken, shall be carefully read to and subscribed by the witness, then certified to by the judge, and immediately thereafter filed in the office of the clerk of the district court of the county where the same was taken, together with the order for the examination, the petition on which the same was granted, and the proof of service of notice.

SEC. 358. The affidavits or proof filed with the deposition or certified copies thereof, shall be prima facie evidence of the facts

therein stated.

SEC. 359. If a trial be had between the parties named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the fact which such deposition prove, upon proof of the death or insanity of the witness or witnesses, or of his or her inability to attend the trial by reason of age, sickness, or settled infirmity, the deposition of depositions, or certified copies 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 an interrogatory shall be made at the trial, unless the same was stated at the examination.

CHAPTER VI.

OATHS AND AFFIRMATIONS.

SEC. 360. Every court of this Territory, every judge or clerk of any court, every justice of the peace, every notary public, and every officer authorized to take testimony or to decide upon. evidence in any proceeding, shall have power to administer oaths or affirmations.

SEC. 361. When a person is sworn who believes in any christian religion, he may be sworn according to the peculiar ceremonies of his religion if there be any such. In other cases, they shall be sworn with uplifted hand to tell the truth, the whole truth, and nothing but the truth, as they shall answer to God.

SEC. 362. Any witness who desires it, may, at his option, instead of taking an oath, make his solemn affirmation, or declaration. that he will tell the truth, the whole truth, and nothing but the truth, in the matter pending, and that he does so under the penalties and pains of perjury. A false affirmation, or declaration, shall be deemed perjury, equally with a false oath.

CHAPTER VII.

WRITTEN EVIDENCE AND INSPECTION OF DOCUMENTS.

SEC. 363. Any court in which an action is pending, or a judge thereof, or a probate judge, may, upon notice, order either party to give to the other within a specified time, an inspection and copy, or permission to take a copy, of any book, document, or paper in his possession or under his control, containing evidence relating to the merits of the action or the defence therein. If compliance with the order be refused, the court may exclude the book, document, or paper, from being given in evidence, or as wanted as evidence by the party applying; may direct the jury to presume it to be such as he alleges it to be, and the court may also punish the party refusing, for a contempt. This section shall not be construed to prevent a party from compelling another to produce books, papers, or documents, when he is examined as a witness.

SEC. 364. There shall be no evidence of the contents of a writing other than the writing itself, except in the following cases: First, When the original has been lost or destroyed, in which case, proof of the loss or destruction shall first be made. Second, When the original is in the hands of the party against whom the evidence is offered, and he fails to produce it after reasonable notice. Third, When the original is a record or other document in the custody of a public officer. Fourth, When the original has been recorded and a certified copy of the record is made evidence by statute. Fifth, When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the evidence sought from them is only the general result of the whole.

SEC. 365. The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, and such alteration is not noted on the writing, shall account for the appearance or alteration. He may show that the alteration was made by another without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made. If he do that, he may give the writing in evidence, but not otherwise.

SEC. 366. A judicial record of this Territory, or of the United States, may be proved by the production of the original or copy thereof certified by the clerk or other person having the legal custody thereof under the seal of the court to be a true copy of such record.

SEC. 367. The records and judicial proceedings of the courts of any State or Territory of the United States may be proved or admitted in the courts of this Territory, by the attestation of the clerk under the seal of the court (if there be a seal), together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form.

SEC. 368. A judicial record of a foreign country may be proved by the production of a copy thereof, certified by the clerk, with the seal of the court annexed (if there be a seal and clerk), or by the legal keeper of the record, with the seal of his office annexed (if there be a seal), to be a true copy of such record, together with a certificate of a judge of the court that the person making the certificate is the clerk of the court or legal keeper of the record, and in either case, that the signature is genuine and the certificate is in due form, and also together with the certificate of the minister or ambassador of the United States or of a consul of the United States in such foreign country, that there is such a court, specifying generally the nature of its jurisdiction, and verifying the signature of the judge and clerk or other legal keeper of the record.

SEC. 369. A copy of a judicial record of a foreign country shall also be admissible in evidence upon proof: First, That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it. Second, That such original was in the custody of the clerk of the court or other legal keeper of the same. And Third, That the copy is duly attested by a seal which is proved to be the seal of the court where the record remains if it be the record of a court, or (if there be no such seal, or if it be not a record of a court) by the signature of the legal keeper of the original.

SEC. 370. Printed copies in volumes of statutes, codes, or other written law enacted by any other State or Territory, or foreign government, purporting or proved to have been published by authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts and judicial tribunals of such State

Territory, or government, shall be admitted by the courts and officers of this Territory on all occasions as presumptive evidence of such laws.

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TITLE XIII.

SEC. 371. of review.

CHAPTER I.

WRIT OF CERTIORARI OR REVIEW.

The writ of Certiorari may be denominated a writ

SEC. 372. This writ may be granted, on application, by any court of this Territory, except a justice's court. The writ shall be granted in all cases where an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor in the judgment of the court any other plain, speedy and adequate remedy.

SEC. 373. The application shall be made on affidavit by the party beneficially interested and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.

SEC. 374. The writ may be directed to the inferior tribunal, board, or officer, or to any other person having custody of the record or proceedings to be certified. When directed to a tribunal, the clerk, if there be one, shall return the writ with the transcript required.

SEC. 375. The writ of review shall command the party towhom it is directed, to certify fully to the court issuing the writ at a specified time and place, and annex to the writ a transcript of the record and proceedings (describing or referring to them with convenient certainty), that the same may be reviewed by the court, and requiring the party in the meantime to desist from the further proceedings in the matter to be reviewed.

SEC. 376. If a stay of proceedings be not mentioned, the words requiring the stay shall be omitted from the writ. These words may be inserted or omitted in the sound discretion of the court,