pear and testify before the commissioner named in the_commission, at a specified time and place within such county.-1907-733.

2036a. Whenever any mandate, writ or commission is issued out of any court of record in any other state, territory, district or foreign_jurisdiction, or whenever, upon notice or agreement, it is required to take the testimony of a witness or witnesses in this state, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state.-1923-73.

2037. If a commission has not been issued, and it appears to a judge of the superior court, or to a justice of the peace, by affidavit satisfactory to him:

1. That the testimony of the witness is material to either party, and that he resides in the county in which such judge or justice holds office;

2. That a commission to take the testimony of such witness has not been issued;

3. That, according to the law of the state where the action or special proceeding is pending, the deposition of a witness taken under such circumstances, and before such judge or justice, will be received in the action or proceeding;

He must issue his subpoena requiring the witness to appear and testify before him at a specified time and place.-1907-733.

2038. Upon the appearance of the witness, the judge or justice must cause his testimony to be taken in writing, and must certify and transmit the same to the court or judge before whom the action or proceeding is pending, in such manner as the - that state requires.

Section

ARTICLE VI.

General Rules of Examination.

Section

2042. Order of proof, how regu- 2049. Party producing witness

lated.

2043. What witnesses may be ex

cluded.

2044. Court may control mode of

interrogation.

2045. Direct examination and cross-examination defined.

2046. Leading question defined.

not allowed to impeach his credit.

2050. Witness, how examined.
When re-examined.

2051. How Impeached.
2052. Same.

2053. Evidence of good character,
when allowed.

2047. When witness may refresh 2054. Writing shown to witness

2042. The order of proof must be regulated by the sound discretion of the court. Ordinarily, the party beginning the case must exhaust his evidence before the other party begins.

2043. If either party requires 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; but a party to the action or proceeding cannot be so excluded; and if a corporation is a party thereto, it is entitled to the presence of one of its officers, to be designated by its attorney. -1907-734.

2044. The court must exercise a reasonable control over the mode of interrogation, so as to make it as rapid, as distinct, as little 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 pertinent and legal 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.

2045. The examination of a witness by the party producing him is denominated the direct examination; the examination of the same witness, upon the same matter, by the adverse party, the cross-examination. The direct examination must be completed before the cross-examination begins, unless the court otherwise direct.

2046. 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, except in the sound discretion of the court, under special circumstance, making it appear that the interests of justice require it.

2047. A witness is allowed to refresh his memory respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such case the writing must be produced, and may be seen 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 must be received with caution.

2048. The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith, and in so doing may put leading questions, but if he examine him as to other matters, such examination is to be subject to the same rules as a direct examination.

2049. The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in section two thousand and fifty-two.

2050. A witness once examined cannot be re-examined as to the same matter without leave of the court, but he may be re-examined as to any new matter upon which he has been examined by the adverse party. And after the examinations on both sides are once concluded, the witness cannot be recalled without leave of the court. Leave is granted or withheld, in the exercise of a sound discretion.

2051. A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his

general reputation for truth, honesty, or integrity is bad, 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 had been convicted of a felony.

2052. A witness may also be impeached by evidence that he has 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 must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them.

2053. Evidence of the good character of a party is not admissible in a civil action, nor of a witness in any action, until the character of such party or witness has been impeached, or unless the issue involves his character.

2054. Whenever a writing is shown to a witness, it may be inspected by the opposite party, and no question must be put to the witness concerning a writing until it has been so shown to him. -1907-735.

2055. A party to the record of any civil action or proceeding or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendent or managing agent of any corporation which is a party to the record, may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses. The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence. Such witness when so called, may be examined by his own counsel, but only as to the matters testified to on such examination.-1917-58.

2061. Jury judges of effect of evidence, but to be instructed on certain points.

2061. The jury, subject to the control of the court, in the cases specified in this code, are the judges of the effect or value of evidence_addressed to them, except when it is declared to be conclusive. They are, however, to be instructed by the court on all proper occasions:

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

2. That they are not bound to decide 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;

3. That a witness false in one part of his testimony is to be distrusted in others;

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

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

6. 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,

7. That if 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.

Section

TITLE V.

Rights and Duties of Witnesses.

Section

2064. Witness bound to attend 2068. Arrest to be made void, and party making arrest liable, etc.

when subpoenaed.

2065. Witness bound to answer

questions.

2066. Right of witness to protection.

2067. Witness protected from arrest when attending, or going or returning.

2069. To make affidavit if arrested.

2070. Court may discharge witness from arrest.

2064. A witness, served with a subpoena, must attend at the time appointed, with any papers under his control lawfully required by the subpoena, and answer all pertinent and legal questions; and, unless sooner discharged, must remain until the testimony is closed. -1907-735.

2065. A witness must answer questions legal and pertinent 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 tendency to subject him to punishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for felony.

2066. It is the right of a witness to be protected from irrelevant, improper, or insulting questions, and 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.

2067. Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the witness may be punished as a contempt, is exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there, and returning therefrom.

2068. The arrest of a witness, contrary to the preceding section, is void, and, when willfully made, is a contempt of the court; and the person making it is responsible to the witness arrested for double the amount of the damages which may be assessed against him, and is also liable to an action at the suit of the party serving the witness with the subpoena, for the damages sustained by him in consequence of the arrest.

2069. An officer is not liable to the party for making the arrest in ignorance of the facts creating the exoneration, but is liable for any subsequent detention of the party, if such party claim the exemption, and make an affidavit stating:

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

2. That he has not thus been served by his own procurement, with the intention of avoiding an arrest;

3. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the sub

poena.

The affidavit may be taken by the officer, and exonerates him from liability for discharging the witness when arrested.

2070. The court or officer before whom the attendance is required, may discharge the witness from an arrest made in violation of section twenty hundred and sixty-seven. If the court has adjourned before the arrest, or before application for the discharge, a judge of the court may grant the discharge.-1907-735.

TITLE VI.

Evidence in Particular Cases, and Miscellaneous and General Provisions.

Chapter I. Evidence in Particular Cases.

Section

II. Proceedings to Perpetuate Testimony.

III.

Administration of Oaths and Affirmations.
IV. General Provisions.

CHAPTER I.

Evidence in Particular Cases.

Section

scription of lands.

2074. An offer equivalent to pay- 2077. Rules for construing dement. 2075. Whoever pays entitled to 2078. Compromise offer of no receipt. 2076. Objections to tender must 2079. In action for divorce, adbe specified. mission not sufficient.

avail.

2074. An offer in writing to pay a particular sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property.