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of the presentation of the claim to the executor or administrator, and of the date of such presentation.17

The books and records of regiments, battalions and companies of the national guard of California of the proceedings under which delinquents are fined, are prima facie evidence of the facts therein stated in an action to collect such fines.18

A certificate of the secretary of a fire department of records required to be kept by him by the provisions of section 3341 of the Political Code, of certificates of exemption, or active membership, and the dates thereof, and to whom issued in such fire department, is prima facie evidence of the facts therein stated.19

All surveys and maps of boundary lines of counties legally made and approved before July 6th, 1874, are prima facie evidence of the establishment of such lines, except so far as they are inconsistent with the provisions of the Political Code.20

The warrant, assessment, certificate and diagram with the affidavit of demand and non-payment in an action to recover a street assessment is prima facie evidence of the regularity and correctness of the assessment, and of the prior proceedings and acts of the superintendent of streets and city council upon which said warrant, assessment and diagram are based, and of the plaintiff's right to recover in the action.21

17. Code of Civil Procedure, Sec. 1496.

18. Political Code, Sec. 1935.
19. Political Code, Sec. 3341.
20. Political Code, Sec. 3973.
21. Statutes of 1889, p. 168.

二纪

CHAPTER XX.

OF INDISPENSABLE EVIDENCE.

The following are cases of indispensable evidence under the laws of the state of California, namely:

Perjury and treason must be proven by the 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

The rule that to convict of perjury the testimony must be that of more than one witness applies only to the fact whether the matter alleged to have been sworn to was false.2

The will of a deceased person, unless it be a non-cupative will, can only be proven by the production of the will, unless such will be lost or destroyed, and by evidence that it was executed with such formalities as are required by law.3

An olographic will is proved, unless it be lost or destroyed, by the production of the will, and by evidence that it was entirely written, dated and signed by the testator himself.4

A non-cupative will need not be in writing, but to be valid the estate bequeathed thereby must not exceed the sum of one thousand dollars.

A non-cupative will must be proved by two witnesses who were present at the making thereof, one of whom must have been asked by the testator at the time to bear witness that such was his will, or to that effect; and it must be further proven that the testator at the time of making the will was in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear or peril of death; or it

1. Code of Civil Procedure, Sec. 1968.
2. Commonwealth v. Pollard, 12 Met. 227.
3. Code of Civil Procedure, Sec. 1969.
4. Civil Code, Sec. 1277.

must be proven that the testator was at the time in expectation of immediate death from an injury received the same day."

No proof, however, can be received of a non-cupative will unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken.6

Every will other than a non-cupative will must be in writing, and every will other than an olographic will and a non-cupative will must be proven to have been executed and attested as follows:

1. It must be subscribed at the end thereof by the testator himself, or some person in his presence, and by his direction must subscribe his name thereto;

2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority;

3. The testator must at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will;

4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator's request and in his presence.7

No will shall be proved as a lost or destroyed will unless its provisions are clearly and distinctly proved by at least two credible witnesses.8

If a will be contested, all the subscribing witnesses to the will, who are present in the county in which the contest is had, and who are of sound mind, must be produced and examined, and the death, absence, or insanity of any of them, must be satisfactorily shown to the court."

The creating, granting, assigning, surrendering or declaring, otherwise than by operation of law, of an estate or interest in real estate, other than that of an estate for a term not exceeding one year, and any trust in real property, or power

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over or concerning it, or in any manner relating thereto, must be proven by 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;10 this rule, however, does not apply to the case of any trust arising or being extinguished by implication or operation of law, nor to abridge the power of a court to compel the specific performance of an agreement in case of a part performance thereof.11

Neither a sale of growing crops, nor a sale of standing trees sold in prospect of immediate separation from the land is a sale of an interest in land.12

No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission or testimony of the parties.13

The corroboration need not be to every fact and circumstance testified to by a party to an action for a divorce, but it is enough, if the testimony of facts and circumstances which are sufficient to support the action be corroborated.14

10. Code of Civil Procedure, Sec. 1971.
11. Code of Civil Procedure, Sec. 1872.

12. 1 Greenleaf on Ev., Sec. 271.

13. Civil Code, Sec. 130.

14. Cooper v. Cooper, 88 Cal. 45.

CHAPTER XXI.

OF INCOMPETENT EVIDENCE.

Parol evidence, unless when admissible as secondary evidence, is not competent evidence to prove the following agreements and promises, but such agreements and promises must be proven by written evidence or some written note or memorandum thereof, subscribed by the party charged or his agent.

I. 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 mentioned in section 2794 of the Civil Code; but such cases are not, in fact, cases of special promises to answer for the debt, default, or miscarriage of another, but they are cases in which the promise is an original obligation of the promiser.

3. An agreement in consideration of marriage, other than a mutual promise to marry.1

4. An agreement for the sale of goods, chattels or things in action, at a price not less than two hundred dollars is not admissible in evidence, unless such agreement or some note or memorandum thereof be in writing and subscribed by the party to be charged, or by his agent; or unless the buyer accept and receive part of such goods and chattels, or the evidence, or some of them, of such things in action, or pay, at the time, some part of the purchase money; when, however, 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 of real estate for a longer

1. Code of Civil Procedure, Sec. 1973.

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