Page:1862-63 Territory of Dakota Session Laws.pdf/184



Sec. 57. Whenever an issue of fact shall have been joined, in any action or suit, before a justice of the peace, and it shall appear on the application of either party, that any witness not residing within the county where such suit is pending, is material in the prosecution or defense of such action or suit, the said justice may award a commission to one or more competent persons authorizing them or any of them to examine such witness or oath upon the interrogation settled by the said justice, and certified by his approbation, entered or endorsed thereon, or by the written agreement or assent of the parties annexed to such commission, to take and certify the depositions of such witness, and to return the same according to the directions given, with such commission, in which commission both parties may unite.

Sec. 58. Such commission may be granted at the instance of either party by such justice of the peace, at any time, upon proof that due notice of such application for such commission has been served on the adverse party at least two days before the time of making such application; and whenever the defendant shall neglect to appear or plead in such action or suit, and the plaintiff shall make application for a commission to take the deposition of a material witness for the prosecution of such action or suit, the justico may award a commission without notice to one or more competent persons, to examine such witness on oath upon interrogations proposed by the plaintiff to be settled by the justice, and certify the depositions, and return the same according to the directions given in such commission.

Sec. 59. The commission shall be executed and returned as is prescribed by statute when a commission issues out of a court as personal of record, and the deposition and testimony taken in pursuance thereof, shall be received on the trial, as testimony in the case, with the like effect, as it such witness were personally examined at such trial.

Sec. 60. When the commission is executed in this territory, the commissioner or commissioners, shall havo the same power