this code are the judges of the effect or value of evidence addressed to them, except when it is thereby declared to be conclusive. They are, however, to be instructed by the court on all proper occasions, 1. That their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence; 2. That they are not bound to find 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 oral admissions of a party with caution; 5. That in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory, the finding shall be according to the preponderance of evidence; that in criminal cases guilt shall 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 the 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. [L. 1862; D. Cd. § 835; H. C. § 845.] As to the instruction of the court, see 139, and note. As to the jury being the judges of the effect of evidence, see § 695, and note. A letter is not as a rule an instrument which it is the duty of the court to declare to the jury, and it is to be submitted to them to judge of its effect: Church V. Melville, 17 Or. 413, 21 Pac. 387. The jury is not bound to find in conformity with the greater number of witnesses: Bloomfield v. Buchanan, 13 Or. 110, 8 Pac. 912; Peabody v. Oregon Ry. & Nav. Co. 21 Or. 134, 26 Pac. 1053, 12 L. R. A. 823. The provision that the jury is not bound to find in conformity to any number of witnesses against presumption or evidence satisfying their mind, does not confer a right to be arbitrarily or wantonly exercised, and if it should be unreasonably exercised, it would be the duty of the court to correct the injury done by setting the verdict aside: Kraft v. Northern Pac. Ry. Co. 62 Fed. 739. WITNESS FALSE IN ONE PART OF HIS TESTIMONY.-The provision that the jury shall be instructed that a witness false in one part of his testimony is to be distrusted in others, is sufficiently complied with by an instruction that "where evidence is given tending to contradict the sworn statements of the witness, that does not of itself, as a matter of law, take out of the case the testimony of the witness, but it goes to you for what you may deem it worth as affecting the value of the sworn statements of the witness before you, and it is for you to determine, when all these statements are taken together, how much importance you will attach to the testimony of the witness": State v. Birchard, 35 Or. 489, 59 Pac. 468. A false statement presently made by a witness has no other or greater effect than to cause him to be distrusted generally. The jury, under proper instructions, is to be the judge of the credit to be given his testimony: United States v. Thompson, 31 Fed. 333. TESTIMONY OF ACCOMPLICE AND ADMISSIONS OF A PARTY.-An instruction as to caution in regard to oral admissions, is not required in a murder trial in respect to the oral admissions of the defendant, where the killing is admitted: State v. Fiester, 32 Or. 263, 50 Pac. 561. The instruction as to caution in regard to the testimony of an accomplice need not be given in the words of the code, but if such an instruction is clearly inferable from the entire charge of the court, this requirement is sufficiently complied with: State v. Savage, 36 Or. 215, 60 Pac. 610. BURDEN OF PROOF.-An instruction as to the burden of proof being on the party having the affirmative of the issue should be given when requested: Schumann v. Wager, 36 Or. 68, 58 Pac. 770. PREPONDERANCE OF EVIDENCE.— In a divorce suit brought upon grounds that involve a criminal charge against the defendant, it is not necessary to prove the allegations constituting such charge beyond a reasonable doubt. It is sufficient if they be established by a preponderance of evidence: Smith v. Smith, 5 Or. 187. In an action on a policy of insurance, where the defense is arson by the insured, it is not improper for the court to point out to the jury the difference between the degrees of proof required in civil and criminal cases, and state that in civil cases there is no question whether a crime has been com satisfactory evidence is offered when it appears that stronger and more satisfactory was in the power of the party, the evidence offered should be viewed with distrist: Wimer v. Smith, 22 Or. 469, 30 Pac. 416. Where the evidence offered clearly establishes the mistake alleged, and is uncontradicted, and the record discloses this to have been admitted by the original parties to the transaction, it was held that the failure to call such parties as witnesses did not infringe the rule as to the best evidence: Mooney v. Holcomb, 15 Or. 639, 16 Pac. 716. CHAPTER X. OF THE RIGHTS AND DUTIES OF WITNESSES. § 858. Witness Bound to Attend when Subpoenaed. It is the duty of a witness, duly served with a subpoena, to attend at the time appointed, with any papers, books, documents, or other thing under his control required by the subpoena, to answer all pertinent and legal questions, and unless sooner discharged, to remain till the testimony is closed; but a witness, at the end of each day's attendance, may demand of the party or his attorney the payment of his legal fees for the next following day, and if not then paid, he is not obliged to remain longer in attendance. [L. 1862; D. Cd. § 836; H. C. § 846.] § 859. Witness, what Questions Bound to Answer. 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 direct tendency to subject him to punishment for a felony, or to degrade his character, unless, in the latter case, it be as to the very fact in issue, or to a fact from which the fact in issue would be presumed. This privilege is the privilege of the witness, and the objection can not be made by a party or his attorney; but a witness must answer as to the fact of his previous conviction for felony. D. Cd. § 837; H. C. § 847.] Subject to the sound discretion of the court, a witness may be compelled to answer any question which tends to test his credibility, or to shake his credit by injuring his character, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except only that he may claim his privilege and refuse to answer a question which tends to expose him to a criminal charge. A sound discretion will never sanction inquiries, the sole object of which is to disgrace the witness, and not to test his credibility, and whenever such is the object, it is the duty of the court to interpose, § 860. Right of Witness to Protection. [L. 1862; and to confine the cross-examination to proper limits: State v. Bacon, 13 Or. 156, 9 Pac. 393, 53 Am. Rep. 8, note. Statements uttered or published by witnesses in the course of judicial proceedings are presumably privileged, and before a witness can be held liable in a civil action this presumption must be overcome by showing affirmatively that such statements were not only false and malicious, but that they were not pertinent to the issues, and were not in response to questions asked by counsel: Cooper v. Phipps, 24 Or. 363, 33 Pac. 985, 22 L. R. A. 836. It is the right of a witness to be protected from irrelevant, insulting, or improper 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. [L. 1862; D. Cd. § 838; H. C. § 848.] § 861. Witness, when Protected from Arrest. 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 officer, is exonerated from arrest, in a civil case, while going to the place of attendance, necessarily remaining there, and returning therefrom. The arrest of a witness contrary to this section is void, and when willfully made, is a contempt of the court; and the officer making it is responsible to the witness arrested, for double the amount of the damages which may be assessed against him therefor, 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. [L. 1862; D. Cd. § 839; H. C. § 849.] § 862. Affidavit to Procure Discharge if Arrested. But the officer making the arrest is not liable in any way therefor, unless the person claiming the exemption make, if required, an affidavit stating,— 1. That he has been served with a subpoena to attend as a witness before a court, judge, or other officer, specifying the same, the place of attendance, and the action, suit, or proceeding in which the subpoena was issued; and, 2. That he has not been thus served by his own procurement, with the intention of avoiding an arrest. The affidavit may be taken by the officer, and exonerates him from liability for not making the arrest, or for discharging the witness when arrested. [L. 1862; D. Cd. § 840; H. C. § 850.] § 863. Court may Discharge Witness from Arrest. The court, judge, or officer before whom the attendance of the witness is required may discharge a witness from an arrest made in violation of section 861. [L. 1862; D. Cd. § 841; H. C. § 851.] TITLE XI. OF EVIDENCE IN PARTICULAR CASES, PROCEEDINGS TO PERPETUATE TESTIMONY, AND OATHS § 864. An Offer in Writing Equivalent to Tender. 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. [L. 1862; D. Cd. § 842; H. C. § 852.] PLEA OF TENDER.-Effect as to costs, see § 573. ante, and note. OFFER OF PAYMENT, ETC.-An offer in writing to pay a debt is a sufficient tender, and such tender will discharge a lien created by a chattel mortgage: Bartel v. Lope, 6 Or. 321. This section, however, does not dispense with the readiness and ability to fulfill the offer, and the burden of establishing the readiness and ability to comply with the offer is on the party making it: Ladd v. Mason, 10 Or. 314; McCourt v. Johns, 33 Or. 565, 53 Pac. 601. It is intended simply to dispense with the necessity of actually producing and offering the money at the outset, but does not relieve a party from the duty of actually having the money, nor from bringing it into court when the suit is begun, in order to keep his tender good: Holladay v. Holladay, 13 Or. 536, 11 Pac. 260. A tender, to be availing as a means of escaping liability, must be kept good by actually producing and paying the money into court: Crawford v. O'Connell, 39 Or. 153, 64 Pac. 658. In an action by vendors to recover property sold on a conditional contract, evidence of a tender of certain money due thereon, though not kept good by payment into court, was properly admitted, since it was an offer of performance, and hence a defense to an action to recover the property on account of a breach of contract: Christenson v. Nelson, 38 Or. 473, 63 Pac. 648. In a suit for an accounting and redemption of property sold on mortgage foreclosure, no tender is necessary before the commencement of the suit, where the mortgagee had been in possession for some time, since the plaintiff had a right to know the amount of rents and profits arising from such premises, and have the amount deducted from the amount required to redeem, and he had no means of finding out without an accounting: Swegle v. Belle, 20 Or. 328. 25 Pac. 633. A failure to tender performance before suit is no defense to an action by a vendor who has given a bond for a deed of real estate to have the equitable interest of the purchaser barred and foreclosed: Security Sav. Co. v. Mackenzie, 33 Or. 209, 52 Pac. 1046. § 865. Whoever Pays or Delivers Entitled to Receipt. 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. [L. 1862; D. Cd. § 843; H. C. § 853.] § 866. Objections to Tender Must be Specified. The person to whom a tender is made shall 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. [L. 1862; D. Cd. § 844; H. C. § 854.] After a tender has been refused for a given reason, evidence of the tender should not be excluded for some other reason than the one originally assigned. Thus, where a tender was refused because an independent amount claimed was not paid, evidence of such tender should not be excluded on the ground that it did not include interest: Christenson v. Nelson, 38 Or. 479, 63 Pac. 648. In an action on a promissory note, to which the defense is made that it was given in consideration that the plaintiff should transfer a sufficient title to certain property, and the answer alleges a tender of the amount due, and that the plaintiff tendered a deed, the answer need not allege the objections thereto, since no objections that the defendant could make to the terms of the instrument would have been availing to reach the point: Sayre v. Mohney, 30 Or. 244, 47 Pac. 197. 867. Rules for Construing Description of Real Property. 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 such particulars, if they constitute a sufficient description to ascertain its application; 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 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, and also the right of this state between high and low water mark; 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. [L. 1862; D. Cd. § 845; H. C. § 855.] DESCRIPTION, GENERALLY. Where by omitting one part of a false or impossible description in a deed a perfect description remains. the false part should be rejected and the instrument upheld: Hayden v. Brown, 33 Or. 221, 52 Pac. 490; Board of School Comrs. v. Wiley, 10 Or. 86. The general rule seems to be that if a surveyor could locate the land from the description it is sufficient: Willamette Falls, etc. Co. v. Gordon, 6 Or. 175. A description in a deed or agreement is sufficient when it states that the property VOL. I.-27. is situated on a certain island, and is known |
