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.

1. Instructions.-Penal Code, sec. 1127 and notes, ante.

TITLE V.

OF THE RIGHTS AND DUTIES OF WITNESSES.

SECTION 2064. Witnesses bound to attend when subpœnaed.

2065. Witnesses bound to answer questions.

2066. Right of witnesses to protection.

2067. Witnesses protected from arrest when attending, or going

or returning.

2068. Arrest to be made void, and party making arrest liable, etc. 2069. To make affidavit if arrested.

2070. Court to discharge witnesses from arrest.

2064. A witness, served with a subpoena, must attend at the time appointed with any papers under his control required by the subpoena, and answer all pertinent and legal questions;

and; unless sooner discharged, must remain until the testimony is closed.

1. Privileges of Witness.-Penal Code, Sec. 1321, n. 30, ante.

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 the 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 subpoena.

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

2070. The court or officer issuing the subpoena, and the court or officer before whom the attendance is required, may discharge the witness from an arrest made in violation of section 2067. If the court have adjourned before the arrest, or before application for the discharge, a judge of the court may grant the discharge. [Amendment, approved April 16, 1880; in effect immediately.

TITLE VI.

OF EVIDENCE IN PARTICULAR CASES, AND MISCEL-
LANEOUS AND GENERAL PROVISIONS.

CHAPTER I. EVIDENCE IN PARTICULAR CASES, §§2074-2079.
II. PROCEEDINGS TO PERPETUATE TESTIMONY, §§2083-

2089.

III. ADMINISTRATION

§§2093-2095.

OF OATHS AND AFFIRMATIONS,

IV. GENERAL PROVISIONS, §§2101-2104.

CHAPTER I.

EVIDENCE IN PARTICULAR CASES.

SECTION 2074. An offer equivalent to payment.
2075. Whoever pays entitled to receipt.
2076. Objections to tender must be specified.

2077. Rules for construing description of lands.

2078. Compromise offer of no avail.

2079. In action for divorce, admission not sufficient.

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.

2075. 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.

2076. The person to whom a tender is made must, at the time, specify any objection he may have to the money, instru

ment, or property, or he must be deemed to have waived it, and if the objection be 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.

2077. 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:

1. 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 the first-mentioned particulars;

2. 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;

3. 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;

4. 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 thread of the stream is held under another title;

5. When tide water is the boundary, the rights of the grantor to ordinary high-water mark are included in the conveyance. When a navigable lake, where there is no tide, is the boundary, the rights of the grantor to low-water mark are included in the conveyance;

6. 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. [Amendment, approved March 24, 1874; in effect July 1, 1874.

2078. An offer of compromise is not an admission that anything is due.

2079. In an action for divorce on the ground of adultery, a confession of adultery, whether in or out of the pleadings, is not of itself sufficient to justify a judgment of divorce.

CHAPTER II.

PROCEEDINGS TO PERPETUATE TESTIMONY.

SECTION 2083. Evidence may be perpetuated.

2084. Manner of application for order.

2085. Appointee of judge, authority of.

2086. Manner of taking the deposition.

2087. Deposition to be filed.

2088. When the evidence may be produced.

2089. Effect of the deposition.

2083. The testimony of a witness may be taken and perpetuated as provided in this chapter.

2084. The applicant must produce to a judge of the superior court a petition, verified by the oath of the applicant, stating:

1. That the applicant expects to be a party to an action in a court in this state, and, in such case, the names of the persons whom he expects will be adverse parties; or,

2. That the proof of some fact is necessary to perfect the title to property in which he is interested, or to establish marriage, descent, heirship, or any other matter which may hereafter become material to establish, though no suit may at the time be anticipated, or, if anticipated, he may not know the parties. to such suit; and,

3. The name of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved. The judge to whom such petition is presented must make an order allowing the examination, and designating the officer before whom the same must be taken, and prescribing the notice to be given, which notice, if the parties expectant are known and reside in this state, must be personally served, and, if unknown, such notice must be served on the clerk of the county where the property to be affected by such evidence is situated, or the judge making the order resides, as may be directed by him, and by publication thereof in some newspaper, to be designated by the judge, for the same period required for the publication of summons. The judge must also designate in his order the clerk of the county to whom the deposition must be returned when taken. [Amendment, approved April 16, 1880; in effect immediately.

2085. The person appointed by the judge to take the depositions is authorized, if a resident of this state, on receiving a copy of the order of the judge, and of the notice prescribed in the last section, with proof of its personal service or publication;