Page:Revised Codes of the State of North Dakota 1895.pdf/1493

Witnesses and Eridence. ture of the clerk, directed to some party designated as commissioner, authorizing him to examine the witness upon oath on interrogatories annexed thereto, and to take and certify the deposition of the witness and return it according to the instructions given with the commission.

§ 8387. Application. Affidavit. Contents. Application must be made upon affidavit stating:

1. The nature of the offense charged.

2. The state of the proceedings in the action, and that an issue of fact has been joined therein.

3. The name of the witness, and that his testimony is material to the defense of the action.

4. That the witness resides out of the state.

§ 8388. Same. Notice of. The application may be made to the court or a judge thereof, and must be upon three days' notice to the state's attorney.

§ 8389. Order of court. Commission. If the court or judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.

§ 8390. Interrogatories. Service of. When the commission is ordered the defendant must serve upon the state's attorney without delay, a copy of the interrogatories to be annexed thereto, with three days' notice of the time at which they will be presented to the court or judge. The state's attorney may in like manner serve upon the defendant or his counsel cross interrogatories, to be annexed to the commission, with like notice. In the interrogatories, either party may insert any question pertinent to the issue. When the interrogatories and cross interrogatories are presented to the court or judge, according to the notice, the court or judge must modify the questions, so as to conform them to the rules of evidence, and must indorse upon them his alterations, and annex them to the commission.

§ 8391. Court must direct manner of return. Unless the parties otherwise consent by an indorsement upon the commission, the court or judge must indorse thereon the direction and manner in which it must be returned, and may in his discretion direct that it be returned by mail or otherwise, addressed to the clerk of the court in which the action is pending, designating his name, and the place where his office is kept.

§ 8392. Manner of executing commission. The commissioner, unless otherwise specially directed, may execute the commission as follows:

1. He must administer an oath to the witness that his answers given to the interrogatories shall be the truth, the whole truth and nothing but the truth.

2 He must cause the examination of the witness to be reduced to writing and subscribed by him.

3. He must write the answers of the witness as nearly as possible in the language in which he gives them, and read to him each answer so taken down, and correct or add to it until it conforms to what he declares is the truth.

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