O F

CHAPTER IV.

ARBITRATIONS.

What may be submitted to arbitration.

$380. Persons capable of contracting may submit to arbitration any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or for life. This qualification shall not include questions relating merely to the partition or boundaries of real property.

[1 Cal. 426; 2 Cal. 74; 3 Cal. 43!; 4 Cal. 1, 205; 5 Cal. 345; 21 Cal. 317; 23 Cal. 275.]

Submission.

§ 381. The submission to arbitration shall be in writing, and may be to one or more persons.

[9 Cal. 142.]

When made an order of court. Revocation.

§ 382. It may be stipulated in the submission, that it be entered as an order of the county court, or of the district court, for which purpose it shall be filed with the clerk of the county where the parties, or one of them, reside. The clerk shall, thereupon, enter in his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award shall be made. When so entered, the submission shall not be revoked without the consent of both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court, in the same manner as a

judgment. If the submission be not made an order of the court, it may be revoked at any time before the award is made.

[30 Cal. 218; 31 Cal. 128.]

Power of arbitrators.

$ 383. Arbitrators shall have power to appoint a time and place for hearing, to adjourn from time to time, to administer oaths to witnesses, to hear the allegations and evidence of the parties, and to make an award thereon.

[23 Cal. 365.]

All to act. Majority to decide. Oath.

§ 384. All the arbitrators shall meet and act together during the investigation; but when met, a majority may determine any question. Before acting, they shall be sworn before an officer authorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties, in relation to the matters in controversy, and to make a just award according to their understanding.

Award how made. Judgment.

§ 385. The award shall be in writing, signed by the arbitrators, or a majority of them, and delivered to the parties. When the submission is made an order of the court, the award shall be filed with the clerk, and a note thereof made in his register. After the expiration of five days from the filing of the award, upon the application of a party, and on filing an affidavit, showing that notice of filing the award has been served on the adverse party or his attorney, at least four days prior to such application, and that no order staying the entry of judgment has been served, the award shall be

entered by the clerk in the judgment book, and shall there upon have the effect of a judgment.

[14 Cal. 390.]

Vacation of award.

§ 386. The court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, in its discretion:

First. That it was procured by corruption or fraud.

Second. That the arbitrators were guilty of misconduct, or committed gross error in refusing, on cause shown, to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced.

Third. That the arbitrators exceeded their powers in making their award; or that they refused, or improperly omitted, to consider a part of the matters submitted to them; or that the award is indefinite, or cannot be performed. [2 Cal. 599; 7 Cal. 312; 31 Cal. 128.]

Modification and correction of award.

$387. The court may, on motion, modify or correct the award, where it appears:

First. That there was a miscalculation in figures, upon which it was made, or that there is a mistake in the description of some person or property therein.

Second. When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matter submitted.

Third. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded.

Appeal.

§ 388. The decision upon the motion shall be subject to appeal in the same manner as an order which is subject to appeal in a civil action; but the judgment entered before a motion is made shall not be subject to appeal.

Damages for revocation of submission.

§ 389. If a submission to arbitration be revoked, and an action be brought therefor, the amount to be recovered shall only be the costs and damages sustained in preparing for and attending the arbitration.

CHAPTER V.

OFFER OF THE DEFENDANT TO COMPROMISE THE WHOLE OR A PART OF AN ACTION.

Offer to allow judgment. Proceedings. Effect.

$390. The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him, for the sum or property, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance, and the clerk shall thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he shall not recover costs, but shall pay the defendant's costs, from the time of the offer.

[17 Cal. 582.]

TITLE XI.

OF WITNESSES, AND OF THE MANNER OF OBTAINING EVIDENCE.

§ 391.* All persons, without exception, otherwise than as specified in this chapter, may be witnesses in any action or proceeding. Facts which have heretofore caused the exclusion of testimony, may still be shown, for the purpose of affecting its credibility.(a) [Amendment, approved April 27, 1863, 701.

Religious belief or interest not to disqualify.

§ 392.* No person shall be disqualified as a witness in any action or proceeding on account of his opinions on matters of religious belief, or by reason of his interest in the event of the action or proceeding as a party thereto, or otherwise; but the party or parties thereto, and the person in whose behalf such action or proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce, or by deposition, or upon a commission, in the same manner and subject to the same rules of examination as any other witness, on behalf of himself, or either or any of the parties to the

* Applicable to justices' courts, see 620.

(a) The original section consisted of the first sentence of the text alone.