Page:1862-63 Territory of Dakota Session Laws.pdf/183

174 or his agent, shail enake oath that the testimony of such witness is material, the justice shall have power to issue an attachment to compel the attendance of such witness: Provided however, That no attachment shall issue against a witness unless his mileage and one day's attendance has been tendered or paid in advance.

Sec. 52. Every such attachment shall be executed in the same manner as a warrant, and the fees of the officer for issuing and serving the same, shall be paid by the person against whom the same was issue, unless lie show reasonable cause to the satisfaction of the justice, for his omission to attend, in which case the party requiring such attachment, shall pay all costs of such attachment.

Sec. 53. Every person subpenaed as aforesaid, and neglecting to appear, shall also be liable to the party in whose behalf he may have been subpeaned, fur dainages which such party may have sustained by his non-appearance: Provided, that said witness had one day's attendance and his mileage tendered or paid him in advance.

Sec. 54. Either party in any civil suit depending before a justice, may, upon notice, cause the deposition of any witness therein, to be taken by any judge or justice of the peace, of any county in this territory where the said witness may be.

Sec. 55. The deposition shall be taken, certified, and returned according to the law of the territory concerning depositions.

Sec. 56. The justice shall allow every depo ion taken, certified, and returned according to the provisions of this act, to be read on the trial of the cause in which it is taken, in all cases where the same testimony, if given verbally in court could have been received; but no such deposition shall be real on the trial unless it appears to the justice that the witness whose deposition is offered:

1. Is dead or resides ont of the county; or,

2. Is unable, or cannot easily attend before the justice, on account of sickness, age, or other bodily infirmity.

3. Has gone out of the county, without the consent or collusion of the party offering the deposition.