try where the book is published, contains correct reports of

such cases;

37. That a trustee or other person, whose duty it was to convey real property to a particular person, has actually conveyed. to him, when such presumption is necessary to perfect the title of such person or his successor in interest;

38. The uninterrupted use by the public of land for a burial ground, for five years, with the consent of the owner and without a reservation of his rights, is presumptive evidence of his intention to dedicate it to the public for that purpose;

39. That there was a good and sufficient consideration for a written contract;

40. When two persons perish in the same calamity, such as a wreck, a battle, or a conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age, and sex, according to the following rules:

First-If both of those who have perished were under the age of fifteen years, the older is presumed to have survived. Second-If both were above the age of sixty, the younger is presumed to have survived.

Third-If one be under fifteen and the other above sixty, the former is presumed to have survived.

Fourth-If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived. If the sexes be the same, then the older.

Fifth-If one be under fifteen or over sixty, and the other between those ages, the latter is presumed to have survived.

CHAPTER VI.

INDISPENSABLE EVIDENCE.

SECTION 1967. Indispensable evidence, what.

1968. To prove perjury and treason, more than one witness required.

1969. Will to be in writing.

1970. How revoked.

1971. Transfer of real property to be in writing.
1972. Last section not to extend to certain cases.
1973. Agreement not in writing, when invalid.
1974. Representation of credit by writing.

1967. The law makes certain evidence necessary to the validity of particular acts, or the proof of particular facts.

1968. Perjury and treason must be proved by testimony of more than one witness. Treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances. 1. Perjury-Penal Code, sec. 118, n. 1, ante.

2. Treason.-Penal Code, sec. 37, n. 1, ante.

3. Evidence of Treason.-Penal Code, sec. 1103, n. 2, ante.

1969. A last will and testament, except a nuncupative will, is invalid, unless it be in writing and executed with such formalities as are required by law. When, therefore, such a will is to be shown, the instrument itself must be produced, or secondary evidence of its contents be given. [Amendment, approved March 24, 1874; in effect July 1, 1874.

1970. A written will can not be revoked or altered otherwise than as provided in the Civil Code. [Amendment, approved March 24, 1874; in effect July 1, 1874.

1971. No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.

1972. The preceding section must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law, nor to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.

1973. In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement can not be received without the writing or secondary evidence of its contents:

1. An agreement that by its terms is not to be performed within a year from the making thereof;

2. A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in section 2794 of the Civil Code;

3. An agreement made upon consideration of marriage, other than a mutual promise to marry;

4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction, an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of sale, the price and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum;

5. An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged.

1974. No evidence is admissible to charge a person upon a representation as to the credit of a third person, unless such representation, or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party to be charged..

CHAPTER VII.

CONCLUSIVE OR UNANSWERABLE EVIDENCE.

SECTION 1978. Conclusive or unanswerable evidence.

1978. No evidence is by law made conclusive or unanswerable, unless so declared by this code.

TITLE III.

OF THE PRODUCTION OF EVIDENCE.

CHAPTER

I. BY WHOM TO BE PRODUCED, §§1981-1982.
II. MEANS OF PRODUCTION, §§1985-1997.
III. MANNER OF PRODUCTION, §§2002-2054.

CHAPTER I.

BY WHOM TO BE PRODUCED.

SECTION 1981. Evidence to be produced, by whom. 1982. Writing altered, who to explain.

1981. The party holding the affirmative of the issue must produce the evidence to prove it; therefore, the burden of

proof lies on the party who would be defeated if no evidence were given on either side.

1. Burden of Proof in Criminal Cases.-Penal Code, sec. 1096, ante.

1982. The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he do that, he may give the writing in evidence, but not otherwise.

CHAPTER II.

MEANS OF PRODUCTION.

SECTION 1985. Subpoena for witness defined. 1986. Subpoena, how issued.

1987. Subpoena, how served.

1988. How served, if witness be concealed.

1989. When a witness is compelled to attend.

1990. Person present compelled to testify.

1991. Disobedience, how punished.

1992. Forfeiture therefor.

1993. Warrant may issue to bring witness, when.

1994. Contents of warrant.

1995. If witness be a prisoner, how brought.

1996. On whose motion.

1997. How examined.

1985. The process by which the attendance of a witness is required is a subpoena. It is a writ or order directed to a person, and requiring his attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other things under his control, which he is bound by law to produce in evidence.

1986. The subpoena is issued as follows:

1. To require attendance before a court, or at the trial of an issue therein, it is issued under the seal of the court before which the attendance is required, or in which the issue is pending;

2. To require attendance out of the court, before a judge, justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of this state, it is issued by the judge, justice, or any other officer before whom the attendance is required;

3. 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, or of any other district or county within this state, 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.

1987. The service of a subpoena is made by showing the original and delivering a copy, or a ticket containing its substauce, 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. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Such service may be made by any person.

1988. If a witness is 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 must serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed.

1989. A witness is not obliged to attend as a witness before any court, judge, 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.

1990. A person present in court, or before a judicial officer, may be required to testify in the same manner as if he were in attendance upon a subpoena issued by such court or officer.

1991. Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court or officer issuing the subpoena or requiring the witness to be sworn; and if the witness be a party, his complaint or answer may be stricken out.

1992. A witness disobeying a subpoena also forfeits to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to at