SEC. 353. A husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband; nor can either, during the marriage or after, be, without the consent of the other, examined as to any communication made by one to the other, during the marriage. But this exception shall not apply to an action or proceeding by one against the other.

SEC. 354. An attorney or counsellor shall not, without the consent of his client, be examined as a witness to any communication made by the client to him, or his advice given thereon in the course of professional employment.

SEC. 355. A clergyman or priest shall not, without the consent of the person making the confession, be examined as a witness as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs.

SEC. 356. A licensed physician or surgeon shall not, without the consent of his patient, be examined as a witness as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient.

SEC. 357. A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure.

SEC. 358. The judge himself, or any juror, may be called as a witness by either party; but in such case it shall be in the discretion of the court or judge to order the trial to be postponed or suspended, and to take place before another judge and jury.

SEC. 359. When a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him.

CHAPTER II.

MANNER OF COMPELLING THE ATTENDANCE OF WITNESSES, AND THEIR RIGHTS AND DUTIES.

SEC. 360. A subpoena may require not only the attendance of the person to whom it is directed, at a particular time and place, to testify as a witness, but may also require him to bring any books, documents, or other things in his control, to be used as evidence. No person shall be required to attend as a witness before any court, judge, justice, or any other officer, out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial.

SEC. 361. The subpoena shall be issued as follows: First. To require attendance before a court, or at the trial of an issue therein, it shall be issued in the name and under the seal of the court before which the attendance is required, or in which the issue is pending.

Second. To require attendance out of court, before a judge, justice, or any other officer authorized to administer oaths or take testimony in any matter, under the laws of this territory, it shall be issued by the judge, justice, or other officer, before whom the attendance is required. Third. To require attendance before a commissioner appointed to take testimony by a court of any other state, territory or county, it may be issued by any judge or justice of the peace, in places within their respective jurisdictions, with like power to enforce attendance, and upon certificate of contumacy to said court, to punish contempt of their process, as such judge or justice could exercise if the subpoena directed the attendance of the witness before their courts in a matter pending therein.

SEC. 362. The service of a subpoena shall be made by reading the same to the witness, or by delivering a copy thereof to such witness, or by leaving such copy with some suitable person at the place of his abode, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. service may be made by any white male person over eighteen years of age; but when made by any other person than an officer authorized to serve process, it shall be proved by the affidavit of the person making it.

or any

Such

SEC. 363. If a witness be concealed in a building or vessel, so as to prevent the service of a subpoena upon him, any court or judge officer issuing the subpoena may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the sheriff of the county serve the subpoena, and the sheriff shall serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed.

SEC. 364. A person present in court, or before a judicial officer, may be required to testify, in the same manner as if he were in attendance upon a subpoena issued by such court or officer.

SEC. 365. It shall be the duty of a witness, duly served with a subpoena, to attend at the time appointed, with any papers under his control, required by the subpoena, to answer all pertinent and legal questions, and, unless sooner discharged, to remain until the testimony is closed.

SEC. 366. A witness shall answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which shall have a tendency to subject him to punishment for a felony, nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed; but a witness shall answer as to the fact of his previous conviction for felony.

SEC. 367. Disobedience to a subpoena, or a refusal to be sworn,

or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court, or officer issuing the subpoena, or requiring the witness to be sworn; and if the witness be a party, his complaint may be dismissed, or his answer stricken out.

SEC. 368. A witness disobeying a subpoena, shall also forfeit to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend; which forfeiture and damage may be recovered in a civil action.

SEC. 369. In case of failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the sheriff of the county to arrest the witness, and bring him before the court or officer where his attendance was required.

SEC. 370. If the witness be a prisoner, confined in jail or prison within this territory, for any other cause than a sentence for felony, an order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer for the purpose of being orally examined, may be made as follows: First. By the court itself, in which the action or special proceeding is pending. Second. By a judge of the supreme court, district court, or probate judge of the county where the action or proceeding is pending, if before a judge or other person out of

court.

SEC. 371. Such order can only be made upon affidavit, showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.

SEC. 372. If the witness be imprisoned in the county where the action or proceeding is pending, and for a cause other than a sentence for felony, his production may be required. In all other cases, his examination, when allowed, shall be taken upon deposition.

SEC. 373. 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 cause 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 therefrom.

SEC. 374. 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. 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. 375. No action to obtain a discovery under oath, in aid of the prosecution or defense 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 act.

SEC. 376. 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 compelled, in the same manner and subject to the same rule of examination, as any other witness, to testify at the trial, and he may be examined on a commission.

SEC. 377. The examination of a party thus taken may be rebutted by adverse testimony.

SEC. 378. If a party refuse to attend and testify at the trial, or to give his deposition before trial, or upon a commission, when required, his complaint, answer, or reply may be stricken out and judgment taken against him; and he may be, also, in the discretion of the court, proceeded against, as in other cases, for a contempt.

SEC. 379. A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf in respect to any matter pertinent to the issue; but if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answer thereto, or discharge, when his answer would charge himself, such adverse party may offer himself as a witness on his own behalf, in respect to such new matter, and shall be so received.

SEC. 380. A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner and subject to the same rules of examination as if he were named as a party.

SEC. 381. Parties may be witnesses on their own behalf, when the action is brought for the settlement of, or in relation to, the business and accounts of a copartnership then existing, or which

had previously existed, between them, to prove vouchers or items of account under one hundred dollars.

CHAPTER IV.

OF AFFIDAVITS.

SEC. 382. 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 ter ritory.

SEC. 383. An affidavit taken in another state or territory 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 state or territory, or before the judge of a court of record having a seal.

SEC. 384. 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. 385. When an affidavit is taken before a judge of a court in another state or territory, or 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.

DEPOSITIONS TAKEN IN THIS TERRITORY.

SEC. 386. 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. 387. Either party may have the deposition taken of a witness in this territory, before any judge or clerk, or any justice