Sec. 438. The court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, at its discretion: First. That it was procured by corruption or fraud. Second. That the arbitrators were guilty of misconduct, or committed gross error in refusing, on cause shown, to postpone the hearing or refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced. Third. That the arbitrators exceeded their powers in making their award; or that they refused or improperly omitted to consider a part of the matter submitted to them; or that the award is indefinite, or cannot be performed.

Sec. 439. The court may, on motion, modify or correct the award where it appears: First. That there was a miscalculation in figures upon which it was made, or that there is a mistake in the description of some person or property therein. Second. When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matters submitted. Third. When the award, though imperfect in form, could have been amended if it had been a verdict or the imperfection disregarded.

Sec. 440. The decision upon the motion shall be subject to appeal in the same manner as an order which is subject to appeal in a civil action; but the judgment entered before motion is made, shall not be subject to appeal.

Sec. 441. If a submission to arbitration be revoked and an action be, brought therefor, the amount to be recovered shall only be the costs and damages sustained in preparing for and attending the arbitration.

CHAPTER V.

OFFER OF THE DEFENDANT TO COMPROMISE THE WHOLE OR PART OF AN ACTION.

Section 442. The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept the offer and give notice thereof within five days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance, and the clerk shall thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn and shall not be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he shall not recover costs, but shall pay the defendant's costs from the time of the offer.

TITLE XI.

CHAPTER I.

OF WITNESSES.

Sec. 443. All persons may be witnesses except as specified in this chapter.

Sec. 444. No person shall be excluded for his religious belief; when a person may be excluded for interest.

Sec. 445. The test of interest; a party may call the adverse

party.

Sec. 446. Persons who shall not be witnesses.

Sec. 447. Husband and wife shall not be witnesses for or against

each other.

Sec. 448. Attorney shall not be examined as to a communication made by a client without consent.

Sec. 449. Nor a priest as to any confession.

Sec. 450. Nor a physician as to any information necessarily required in that capacity.

Sec. 451. Nor a public officer as to communication made in of ficial confidence.

Sec. 452. The judge or any juror may be a witness.

Sec. 453. When the witness does not speak English an interpreter shall be sworn.

Section 443. All persons, without exception, otherwise than as specified in this chapter, may be witnesses in an action or proceeding. Facts which have heretofore caused the exclusion of testimony, may still be shown for the purpose of affecting its credibility.

Sec. 444. No person shall be disqualified as a witness in any action or proceeding on account of his opinions on matters of religious belief, or by reason of his interest in the event of the action or proceeding as a party thereto or otherwise; but the party or parties thereto, and the person in whose behalf such action or proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence either viva voce or by deposition, or upon a commission, in the same manner and subject to the same rules of examination as any other witness, on behalf of himself or either on any of the parties to the action or proceeding.

Sec. 445. No person shall be allowed to testify under provision of the last section where the adverse party, or the party for whose immediate benefit the action or proceeding is prosecuted or defended, is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased person; and nothing in said section shall affect the laws in relation to attestation of any instrument required to be attested; nor shall anything contained in said section render any person who, in a criminal proceeding is charged with the commission of any public offence, competent or compellable to give evidence therein for or against himself.

Sec. 446. The following persons shall not be witnesses: First. Those who are of unsound mind at the time of their production for examination. Second. Children under ten years of age, who, in the opinion of the court, appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. Third. Persons against whom judgment has been rendered upon a conviction for a felony, unless pardoned by the Governor, or such judgment has been reversed on appeal.

Sec. 447. A husband shall not be a witness for or against his wife, and a wife shall not be a witness for or against her husband; and where husband and wife are parties to an action or proceeding they, or either of them, may be examined as witnesses in their own behalf, or in behalf of each other, or in behalf of any of the parties thereto, the same as any other witness; but this section shall not apply to cases of divorce, neither shall any husband or wife be competent or compellable to disclose any communication made to him or her by the other during marriage.

Sec. 448. An attorney or counsellor shall not, without the consent of his client, be examined as a witness as to any communication made by the client to him, or his advice given thereon in the course of professional employment.

Sec. 449. 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. 450. A licensed physician or surgeon shall not, without 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: Provided, however, In any suit or prosecution against a physician or surgeon for malpractice, if the patient or party suing or prosecuting shall give such consent, and any such witness shall give testimony, then such physician or surgeon, defendant, may call any other physician or surgeon, as witness on behalf of the defendant, without the consent of such patient or party suing or prosecuting.

Sec. 451. 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. 452. 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 or jury.

Sec. 453. When a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him. Any person, a resident of the proper county, may be summoned by any court or judge to appear before such court or judge to act as interpreter in any action or proceeding. The summons shall be served and returned in like manner as a subpoena. Any person so summoned shall, for a failure to attend at the time and place named in the summons, be deemed guilty of a contempt, and may be punished accordingly. A person summoned as an interpreter shall receive such compensation as the court, in its discretion, may order, in addition to the fees allowed by law.

CHAPTER II.

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

Sec. 454. Subpoenas may require witnesses alone, or to bring books, &c., but not more than thirty miles, if out of of the county.

Sec. 455.

Subpæna shall be issued-in what cases.

Sec. 456. Service of subpoena.

Sec. 457. Service on concealed witness.

Sec. 458. Persons present may be required to testify without sub

pœna.

Sec. 459. A witness duly served shall attend as required.

Sec. 460. A witness shall answer pertinent questions, exceptions. Sec. 461. Penalty for disobedience to subpoena, &c.

Sec. 462. Witness disobeying subpoena shall forfeit one hundred dollars and damages.

Sec. 463. If witness fail to attend, the court may issue a warrant. Sec. 464. If witness be a prisoner, an order for his examination or production may be made.

Sec. 465. Such order can be made only upon affidavit.

Sec. 466. When imprisoned, witness may be produced or his deposition taken.

Sec. 467. Witness duly subpoenaed exempt from arrest in a civil

action.

Sec. 468. Arrest of witness under subpoena void; may be discharged on affidavit.

Section 454. 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 under his control, to be used as evidence. No person shall be required to attend as a witness before any court, judge, or 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. 455. The subpoena shall be issued as follows: First. To require attendance before the court, or at the trial of an issue. therein, it shall be issued, 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 the court before a judge or justice, or 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 any other officer before whom the attendance is required. Third. To require attendance before a commissioner appointed to take testimony by a court of a foreign country or of the United States, or of any other state in the United States of America, or any other district or county within the territory, or before any officer or officers empowered by the laws of the United States to take testimony, it may be issued by any judge or justice of the peace in places within their respective jurisdiction 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. 456. The service of a subpoena shall be made by showing the original, and delivering a copy or a ticket containing its substance to the witness personally, 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. Such service may be made by any person.

Sec. 457. 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, or any 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