Same. 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. NOTE.-1. GENERALLY.-Seligman vs. Kalkman, 8 Cal., p. 216; Battersby vs. Abbott, 9 id., p. 565; McCauley vs. Weller, 12 Cal., p. 500; People vs. Ybarra, 17 Cal., p. 166; People vs. Dick, 32 Cal., p. 213; People vs. Dick, 34 id., p. 663; Largan vs. Central P. R. R. Co., 40 Cal., p. 372; see Secs. 608 and 2102. 2. Subd. 2.-Blankman vs. Vallejo, 15 Cal., p. 639; McFadden vs. Wallace, 38 id., p. 57. 3. Subd. 4.-See Sec. 1870, Subds. 2 and 3. 4. Subd. 5.-See Sec. 1981, ante. 5. Subd. 7.-Norris vs. Russell, 5 Cal., p. 249; Bagley vs. McMickle, 9 Cal., p. 430. TITLE V. OF THE RIGHTS AND DUTIES OF WITNESSES. SECTION 2064. Witnesses bound to attend when subpoenaed. 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 lia ble, etc. 2069. To make affidavit if arrested. 2070. Court to discharge witnesses from arrest. bound to when sub 2064. (§ 407.) A witness, served with a subpoena, Witnesses must attend at the time appointed, with any papers attend under his control required by the subpoena, and answer poenaed. all pertinent and legal questions; and, unless sooner discharged, must remain until the testimony is closed. NOTE.-Jackson vs. Feather River W. Co., 14 Cal., p. 18; Harper vs. Lamping, 33 Cal., p. 641; Thornton bound to answer questions. 2065. ($ 408.) A witness must answer questions Witnesses 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. NOTE.-Ex Parte Rowe, 7 Cal., p. 184; Clarke vs. 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. Right of witnesses to protec tion. protected from arrest when or going or returning. 2067. (§ 415.) Every person who has been, in Witnesses good faith, served with a subpoena to attend as a witness before a Court, Judge, Commissioner, referee, or attending. 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. NOTE.-Robb vs. Robb, 6 Cal., p. 32. Arrest to be made void, and party making arrest liable, etc. To make affidavit if arrested. Court to discharge witnesses from arrest. 2068. (§ 416.) 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. (§ 416.) 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 subpœna 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 subpœna, 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 or a County Judge may grant the discharge. TITLE VI. OF EVIDENCE IN PARTICULAR CASES, AND MISCEL- CHAPTER I. Evidence in particular cases. II. Proceedings to perpetuate testimony. tions. IV. General provisions. 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 An offer equivalent sum of money, or to deliver a written instrument or to payment specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property. NOTE.-Osborne vs. Elliott, 1 Cal., p. 337; Goodale vs. West, 5 Cal., p. 339; Perre vs. Castro, 14 Cal., p. 519; Gaven vs. Hagen, 15 Cal., p. 208; Duff vs. Fisher, 15 Cal., p. 376; Curiac vs. Abadie et als., 25 Cal., p. 502; Hayes vs. Joseph, 26 Cal., p. 535; Mahler vs. Newbaur, 32 Cal., p. 168; Tarbell vs. C. P. R. R. Co., 34 Cal., p. 616; Redington vs. Chase, 34 Cal., p. 666. pays to receipt. 2075. Whoever pays money, or delivers an instru- Whoever ment or property, is entitled to a receipt therefor from entitled 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. Objections to tender must bo specified. Rules for construing of lands. 2076. The person to whom a tender is made must, at the time, specify any objection he may have to the money, instrument, 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 description 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 a 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; 5. When tide water 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 ref |