rogatories, to be settled, if not agreed upon, by the same officer and in the same manner as in case of a deposition upon commission; and in such case the deposition shall be taken, certified, and directed by the commissioner in the same manner as a deposition upon commission.

Sec.

CHAPTER SIXTY-THREE.

OF THE MANNER OF TAKING DEPOSITIONS IN THE DISTRICT.

652. Depositions in the district, when taken, and notice thereof.

Sec.

656. May be used by either party; objec-
tions to relevancy or form.

653. How taken; either party may attend.

657.

Proof before using certain deposi

tions; insufficient notice.

654. Certificate of officer.

658.

655. Deposition, to whom forwarded.

Depositions may be read at any
time; exclusion of a portion.

Depositions in

taken, and notice

SEC. 652. Either party may take the testimony of a witness in the district by deposition, in the cases allowed by this code, before the the district, when clerk of a court of record, or other person authorized to administer thereof. oaths, on giving the adverse party previous notice of the time and place of the examination, the name of the officer, and the witness; such notice shall be given at least three days before the day of the examina. tion, if the distance of the place of examination from the residence of the person to whom notice is given does not exceed twenty-five miles, and one day in addition for every additional twenty-five miles, unless the court or judge thereof by order prescribe a shorter time. When a shorter time is prescribed the order shall be served with the notice.

How taken;

SEC. 653. Either party may attend upon such examination and examine the witness upon oral interrogatories. The deposition shall either party may be written by the officer taking the same, or by the witness, or by attend. some disinterested person, in the presence and under the direction of such officer. When completed it shall be read to or by the witness and subscribed by him. Before subscribing it the witness shall be allowed, if he desire it, to correct or explain any statement in the deposition, but such statement, although corrected and explained, shall remain a part of the deposition.

Certificate of of

SEC. 654. The officer taking the deposition shall append thereto his certificate, under the seal of his office, if there be a seal, to the effect ficer. that the deposition was taken before him, at a place mentioned, between certain hours of a day or days mentioned, and reduced to writing by a person therein named; that, before proceeding to the examination, the witness may be duly sworn to tell the truth, the whole truth, and nothing but the truth; that the deposition was read to or by the witness and then by him subscribed.

Deposition, to

SEC. 655. The officer taking the deposition shall inclose the same in a sealed envelope, directed to the clerk of the court, or the justice of whom forwarded. the peace before whom the action or proceeding is pending, or such other person as may by writing be agreed upon, and deliver or forward the same accordingly by mail or other usual channel of conveyance.

SEC. 656. A deposition taken pursuant to the provisions of this May be used by chapter may be used by either party upon the trial or proceeding either party; objections to releagainst any party giving or receiving the notice, subject to all legal vancy or form. exceptions. But no objections can be made at the trial to the relevancy of the testimony or the form of the interrogatory, unless the same appear by the deposition or written interrogatories to have been taken at the time of the examination or the settling of such interrogatories. Section six hundred and fifty-three, except the first sentence thereof, and sections six hundred and fifty-four and six hundred and fifty-five shall apply to depositions taken out of the district on oral interrogatories. -87

SUP R S-VOL 2

Proof before us

ing certain depositions; insufficient notice.

Depositions may

time; exclusion of a portion.

SEC. 657. If a deposition be taken under subdivisions two, three, or four of section six hundred and sixty, before the same can be used proof shall be made that the witness did reside beyond the service of a subpoena, or that he still continues absent or infirm, as the case may be. A deposition taken, whether in the district or without, upon insufficient notice or otherwise, not substantially in conformity with the provisions of this chapter, may be excluded from the case, unless such insufficient notice or other omission has been waived by the consent or conduct of the adverse party.

SEC. 658. When a deposition has once been taken it may be read in be read at any the same action or proceeding, or in any other action or proceeding, between the same parties or their representatives upon the same subject, and is then to be deemed the evidence of the party reading it. When any portion of a deposition is excluded from a case, so much of the adverse examination as relates thereto is excluded also.

Order of proof, how regulated.

Witness not under examination may be excluded.

Interpreter sworn, when.

Court may con

SEC. 659. The order of proof shall be regulated by the sound discretion of the court. Ordinarily, the party beginning the case shall exhaust his evidence before the other begins.

SEC. 660. If either party require it, the judge may exclude from the court room any witness of the adverse party not at the time under examination, so that he may not hear the testimony of other witnesses.

SEC. 661. When a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him.

SEC. 662. The court may exercise a reasonable control over the trol mode of inter- mode of interrogation, so as to make it as rapid, as distinct, as little rogation. annoying to the witness, and as effective for the extraction of the truth as may be; but, subject to this rule, the parties may put such legal and pertinent questions as they see fit. The court, however, may stop the production of further evidence, upon any particular point, when the evidence upon it is already so full as to preclude reasonable doubt.

Direct and cross SEC. 663. The examination of a witness by the party producing him examination de- is denominated the direct examination; the examination of the same fined. witness upon the same matter, by the adverse party, the cross-examination. The direct examination must be completed before the crossexamination begins, unless the court otherwise direct.

Leading questions defined.

When witness

may testify or re

SEC. 664. A question which suggests to the witness the answer which the examining party desires is denominated a leading or suggestive question. On a direct examination, leading questions are not allowed, unless merely formal or preliminary, except in the sound discretion of the court, under special circumstances, making it appear that the interests of justice require it.

SEC. 665. A witness is allowed to refresh his memory, respecting a fact, by anything written by himself or under his direction at the time fresh his memory when the fact occurred or immediately thereafter, or at any other time from writing.

when the fact was fresh in his memory and he knew that the same was correctly stated in the writing. But in either case the writing must be produced, and may be inspected by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts; but such evidence shall be received with caution.

SEC. 666. The adverse party may cross-examine the witness as to

Cross-examina

any matter stated in his direct examination or connected therewith, tion, as to what it and in so doing may put leading questions; but if he examine him as extends. to other matters, such examination is to be subject to the same rules

as a direct examination.

SEC. 667. The party producing a witness is not allowed to impeach Party not to imhis credit by evidence of bad character, but he may contradict him by peach his own witother evidence, and may also show that he has made at other times ness. statements inconsistent with his present testimony, as provided in section six hundred and seventy.

Witness, how

SEC. 668. A witness once examined shall not be reexamined as to the same matter without leave of the court; but he may be reexamined reexamined. as to any new matter upon which he has been examined by the adverse party. After the examinations on both sides are concluded the witness shall not be recalled without leave of the court. Leave is granted or withheld in the exercise of a sound discretion.

How witness im

SEC. 669. A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his gen- peached. eral reputation for truth is bad, or that his moral character is such as to render him unworthy of belief, but not by evidence of particular wrongful acts; except that it may be shown by the examination of the witness or the record of the judgment that he has been convicted of a crime.

statements.

SEC. 670. A witness may also be impeached by evidence that he has on inconsistent made at other times statements inconsistent with his present testimony; but before this can be done the statements must be related to him, with the circumstances of times, places, and persons present; and he shall be asked whether he has made such statements, and, if so, allowed to explain them. If the statements be in writing, they shall be shown to the witness before any question is put to him concerning them.

Evidence of good

SEC. 671. Evidence of the good character of a party is not admissible in a civil action or proceeding unless the issue therein involve his character, when alcharacter, nor of a witness in any action or proceeding until the char- lowed. acter of such witness has been impeached.

SEC. 672. Whenever a writing is shown to a witness it may be Writing shown inspected by the adverse party, and if proved by the witness, shall be to witness may be read to the jury before his testimony is closed, or it shall not be read, inspected by adexcept on recalling the witness.

CHAPTER SIXTY-FIVE.

OF THE EFFECT OF EVIDENCE.

verse party.

Sec.

673. On what points jury to be instructed.

On what points

SEC. 673. The jury, subject to the control of the court in the cases specified in this code, are the judges of the effect and value of evidence jury to be instructaddressed to them, except when it is thereby declared to be conclusive. ed. They are, however, to be instructed by the court on all proper

occasions:

First. That their power of judging the effect of evidence is not arbitrary, but to be exercised with legal discretion and in subordination to the rules of evidence:

Second. That they are not bound to find in conformity with the

declarations of any number of witnesses which do not produce conviction in their minds against a less number, or against a presumption or other evidence satisfying their minds;

Third. That a witness willfully false in one part of his testimony may be distrusted in others:

Fourth. That the testimony of an accomplice ought to be viewed with distrust and of the oral admissions of a party with caution;

Fifth. That in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory the finding shall be according to the preponderance of evidence; that in criminal cases guilt shall be established beyond reasonable doubt.

Sixth. That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore,

Seventh. That if the weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.

CHAPTER SIXTY-SIX.

OF THE RIGHTS AND DUTIES OF WITNESSES.

Witness bound

SEC. 674. It is the duty of a witness, duly served with a subpoena to attend when and tendered mileage and fees for the day named, to attend at the time subpoenaed. appointed, with any papers, books, documents, or other thing 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; but a witness, at the end of each day's attendance, may demand of the party or his attorney the payment of his legal fees for the next following day, and if not then paid he is not obliged to remain longer

answer.

in attendance.

What questions SEC. 675. A witness shall answer questions legal and pertinent to witness bound to the matter in issue, though his answer may establish a claim against himself. But he need not give an answer which will have a direct tendency, to subject him to criminal prosecution, or to degrade his character, unless, in the latter case, it be as to the very fact in issue, or to a fact from which the fact in issue would be presumed. This privilege is the privilege of the witness, but a witness must answer as to the fact of his previous conviction for felony.

Right of witness to protection.

When

rest.

witness

SEC. €76. It is the right of the witness to be protected from irrelevant, insulting, or improper questions, or from harsh or insulting demeanor; to be detained only so long as the interests of justice require it; to be examined only as to matters legal and pertinent to the issue.

SEC. 677. Every person who has been, in good faith, served with a protected from ar- subpoena to attend as a witness before a court, judge, commissioner, referee, or other officer, is exonerated from arrest in a civil case while going to the place of attendance, necessarily remaining there, and returning therefrom. The arrest of a witness contrary to this section is void, and when willfully made is a contempt of court; and the officer making it is responsible to the witness arrested for double the amount of damages which may be assessed against him therefor, and is also liable to an action at the suit of the party serving the witness with the subpœna for the damages sustained by him in consequence of the arrest.

To make affida

SEC. 678. But the officer making the arrest is not liable in any way therefor, unless the person making the exception make, if required, vit if arrested. an affidavit stating

First. That he has been served with a subpoena to attend as a witness before a court, judge, or other officer, specifying the same, the place of attendance, and the action or proceeding in which the subpœna was issued; and

Second. That he has not been thus served by his own procurement, with the intention of avoiding an arrest. The affidavit may be taken by the officer, and exonerates him from liability for not making the arrest or for discharging the witness when arrested.

SEC. 679. The court, judge, or officer before whom the attendance Court may disof the witness is required may discharge a witness from an arrest made charge witness in violation of section six hundred and seventy-seven.

SEC. 680. Whoever pays money, or delivers an instrument or property, is entitled to a receipt therefor from the person to whom the payment or delivery is made, and may demand a proper signature to such receipt as a condition of the payment or delivery.

from arrest.

Whoever paysor delivers entitled to receipt.

Objections to must be

tender

SEC. 681. The person to whom a tender is made shall at the time specify any objection he may have to the money, instrument, or prop erty, or he must be deemed to have waived it; and if the objection be specified. to the amount of money, the terms of the instrument, or the amount or kind of property, he must specify the amount, terms, or kind which he requires, or be precluded from objecting afterwards.

SEC. 682. The following are the rules for construing the descriptive part of a conveyance of real property when the construction is doubtful and there are no other sufficient circumstances to determine it.

First. Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false does not frustrate the conveyance, but it is to be construed by such particulars, if they constitute a sufficient description to ascertain its application;

Second. When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount;

Third. Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both;

Fourth. When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or bed of the stream is held under another title;

Fifth. When tide water is the boundary, the rights of the grantor to low-water mark are included in the conveyance;

Sixth. When the description refers to a map, and that reference is inconsistent with other particulars, it controls them, if it appear that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.

Rules for construing description of real property.