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$ 404. Service of subpæna.

The service of a subpæna shall be made by showing the original, and delivering a copy, or a ticket containing its substance, 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. Such service


be made by any person. J. P.

§ 405. Serving on concealed witness.

If a witness be concealed in a building or vessel, so as to prevent the service of a subpæna upon him, any Court or Judge, or any officer issuing the subpæna, 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 subpæna ; and the Sheriff shall serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed.

J. P.

$ 406. Person present may be required to testify without subpoena.

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.

J. P.

§ 407. A witness duly served shall attend as required.

It shall be the duty of a witness, duly served with a subpæna, to attend at the time appointed, with any papers under his control required by the subpæna, to answer all pertinent and legal questions; and, unless sooner discharged, to remain till the testimony is closed.

J. P.

1. Courts are apt to take too narrow a view of the rights of cross-examination, confining it to the subject matter of the examination in chief. Undoubtedly the cross-examination cannot go beyond that matter, but it ought to be allowed a very free range within it. The witness may be sifted as to every fact touching the matters as to which he testifies, so that his temper, leanings, relations to the parties and cause, his intelligence, the accuracy of his memory, his disposition to tell the truth, his character, his means of knowledge, his general and particular acquaintance with the subject matter, may be fully tested. Jackson v. Feather River g. Gibsonville Water Co., 14 Cai. 18.

2. It is settled in this State, that where the veracity of a witness is impeached only by facts stated by him on his cross-examination, or by proof of contradictory statements in regard to the matter of his testimony, made by him on other occasions, evidence of his general good character for truthfulness is inadmissible. (3 Hill, 309; 5 Den. 106; 1 Park. Cr. 310; 3 Seld. 378; 17 Barb. 489; overruling People v. Rector, 19 Wend. 569; Curter v. The People, 2 Hill, 317.) Frost v. McCurgar, 29 Barb. 617.


$ 408. Witness shall answer pertinent questions.

A witness shall 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 shall 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 shall answer as to the fact of his previous conviction for felony.

J. P.

1. Where the answer of a witness would subjert him to criminal punishment, he is not privileged from answering on the ground that his answer would disgrace him, but solely on the ground that he is not compelled to criminate himself. Ex parte Roue, 7 Cal. 184.

2. Being sentenced on a conviction for petit larceny, docs not disqualify as a witness. People v. Shay, 10 Abb. Pr. R. 413.

§ 409. Penalty for disobedience to subpæna, etc.

Disobedience to a subpæna, 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 subpæna, or requiring the witness to be sworn; and if the witness be a party, his complaint may be dismissed or his answer stricken out.

J. P.

$ 410. Witness disobeying subpæna shall forfeit one hundred dollars and all damages.

A witness disobeying a subpoena shall also forfeit to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend; which forfeiture and damages may be recovered in a civil action.

J. P.


$ 411. If a witness fail to attend, the Court may issue a warrant.

In case of failure of a witness to attend, the Court or officer issuing the subpoena, upon proof of the service thereof, and of the fail

ure of the witness, may issue a warrant to the Sheriff of the county to arrest the witness, and bring him before the Court or officer where his attendance was required.

J. P.

§ 412. If a witness be a prisoner, an order for his examination or production may be made.

If the witness be a prisoner, confined in a jail or prison within this State for any other cause than a sentence for felony, an order for his examination in the prison upon deposition, or for his tempo rary removal and production before a Court or officer for the purpose of being orally examined, may be made as follows:

1st. By the Court itself, in which the action or special proceeding is pending;

2d. By a Judge of the Supreme Court, District Court, or County Judge of the county where the action or proceeding is pending, if before a Judge or other person out of Court.

J. P.

8.413. Such order can be made only upon affidavit.

Such order can only be made upon affidavit, showing the nature of the action or proceeding, the testimony expected from the wit ness, and its materiality.

J. P.

§ 414. When imprisoned witness may be produced or his depo sition taken.

If the witness be imprisoned in the county where the action or proceeding is pending, and for a cause other than a sentence for felony, his production may be required. In all other cases, his. examination, when allowed, shall be taken upon deposition.

J. P.

§ 415. Witness duly subpænaed exempt from arrest in a civil action.

Every person who has been in good faith served with a subpæna 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, shall be exonerated from arrest, in a

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civil action, while going to the place of attendance, necessarily remaining there, and returning therefrom.

J. P.

1. This section does not exempt him from obeying any ordinary process of the Court, e. g., to attend and answer concerning his property, under a supplementary writ. Page v. Randall, 6 Cal. 32.

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§ 416. Arrest of witness under subpæna void, may be discharged on affidavit.

The arrest of a witness contrary to the last section, shall be void; but an officer shall not be liable to the party for making the arrest in ignorance of the facts creating the exoneration, but shall be liable for any subsequent detention of the party, if such party claim the exemption and make an affidavit, stating:

1st. 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,

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

3d. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpona. The affidavit may be taken by the officer, and shall exonerate him from liability for discharging the witness when arrested.

J. P.

CHAPTER III.Of the examination of parties to an action or pro

ceeding, and of persons for whose immediate benefit such action
or proceeding is prosecuted or defended.

Sec. 417. No action for discovery of evidence shall be allowed.
418. A party may be examined for the adverse party in

the same manner as any other witness.
419. Such examination may be rebutted.
420. Penalty for refusal of a party to testify.
421. Party so called may be examined on his own behalf.

When adverse party may be called in rebuttal.

SEC. 422. A person for whose benefit an action is prosecuted

may testify as if a party. And a party may be wwined, on his own

half on notice.

ha pramined to prove

Amendment to Sec. 417.--Pasxed April 27th, 1763.

(Took effect sixty days after passage.] § 417. No action to obtain a discovery under oath, in aid of the prosecution or defense of another action or proceeding, shall be allowed, nor shall any examination of a party be had on behalf o the adverge party, except in the manner provided by this and the foregoing chapter.

2. This section com. ceeding supplementary to an execuuu...

Section 118.---Repealed April 27th, 1863.

(Takes effect sixty days thereafter.)

ty in the

as a wit ness, at the instance ve

of several adverse parties; and for that purpose may be compened, in the same manner, and subject to the same rules of examination as any other witness, to testify at the trial, and he may be examined on a commission.

J. P.; N. Y. Code, 390.

1. Under our statute, the plaintiff may call as a witness any one of the adverse parties to the action, where there are several, and they are sued as joint tort-feasors. He is not bound to call all if he call one. Rosenbaum v. Hernberg, 17 Cal. 602.

2. In an action against defendants for damages for conspiring together to defraud plaintiffs of certain goods—the conspiracy being succesfully carried out by defendants, obtaining and disposing of the goods—H., one of the defendants, made a voluntary appearance, but interposed no defense. The other defendants answered and contested the case: Held, that H. was a competent witness for plaintiffs under our statute; and probably so at common law, especially as he did not object to testifying. Rosenbaum v. Hernberg, 17 Cal. 602.

3. A party who calls an adverse party to testify makes him a witness, and waives his incompetency to be heard for himself, or for his codefendant or coplaintiff. Turner v. McIlhaney, 8 Cal. 575.

4. On the trial of a cause, where defendant calls the plaintiff as a witness after his examination in chief, he has a right to testify on his own behalf, generally, as to the matters in issue. Drake v. Eakin, 10 Cal. 312.

5. Under the Code, a party to an action may not only be examined at the option of the adverse party, but may also be compelled to produce, on such examination,

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