4. An agreement for the sale of goods, chattels or things in action, at a price not less than two hundred dollars, unless the buyer accept or receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction, an entry by the auctioneer in his sale book, at the time of the sile, 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 for a longer period than one year, or for the sale of real property or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged.

See N. Y. C. C. P. $1739; Or. C. C. P. § 775.

Subdivision 2.-2 Cal. 155, 460, 485; 5 Cal. 285; 6 Cal. 102; 7 Cal. 33; 9 Cal. 328; 12 Cal. 236, 311, 542; 18 Cal. 622; 22 Cal, 187; 27 Cal. 80; 29 Cal. 150; 33 Cal. 1:1; 34 Cal. 673; 37 Cal. 534; 38 Cal. 133.

Subdivision 4.--1 Cal. 181, 415; 3 Cal. 140; 22 Cal. 103, 539.

Subdivision 5.-1 Cal. 98, 119; 2 Cal. 439; 4 Cal. 50, 315; 6 Cal. 75; 9 Cal. 181, 333; 21 Cal. 171; 37 Cal. 250, 529, 634; 33 Cal. 99; 39 Cal. 109, 639. $ 1971.

Vide

Ó 1974. No evidence is admissible to charge a person upon representation as to the credit of a third person, unless such representation, or some memorandum thereof, be in writing, and either subscribed by, or in the handwriting of, the party to be charged.

N. Y. C. C. P. § 1790; Or. C. C. P. § 776.

CHAPTER VII.

CONCLUSIVE OR UNANSWERABLE EVIDENCE.

SECTION 1978. Conclusive or unanswerable evidence.

1978. No evidence is by law made conclusive or unanswerable, unless so declared by this code.

N. Y. C. C. P. § 1792.

SECTION 1981. Evidence to be produced, by whom. 1982. Writing altered, who to explain.

§ 1981.

The party holding the affirmative of the issue must produce the evidence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given ou either side.

N. Y. C. C. P. § 1793; Or. C. C. P. § 777.

8 Cal. 31; 15 Cal. 99; 26 Cal. 606.

Vide § 2061, subdivision 5.

Ó 1982. (§ 448.) The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must ac count for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he do that, he may give the writing in evidence, but not otherwise.

N. Y. C. C. P. $ 1794; Or. C. C. P. $ 778.

Stat. 1851. 122, inserted the words, "and such alteration is not noted on the writing," between "dispute' and must account;" also omitted words in italics.

CHAPTER II.

MEANS OF PRODUCTION.

SECTION 1985.

Subpoena for witness defined.

1986. Subpoena, how issued.

1987. Subpoena, how served.

1988. How, if witness be concealed.

1989. When a witness is compelled to attend.
1990. Person present compelled to testify.

1991. Disobedience, how punished.

1992. Forfeiture therefor.

1993. Warrant may issue to bring witness, when.
1994. Contents of warrant.

1995. If witness be a prisoner, how brought.
1993. On whose motion.

1997. How examined.

§ 1985. (§ 402.) The process by which the attendance of a witness is required is a subpœna. It is a writ or order directed to a person and requiring bis attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents or other things under his control which he is bound by law to produce in evidence.

N. Y. C. C. P. § 1795; Or. C. C. P. § 779.

Stat. 1855, 197, read; "A subpoena may require not only the attendance of the person to whom it is directed, at a particular time and place, to testify as a witness, but may also require him to bring any books, documents, or other things under his control, to be used as evidence. No person shall be required to attend as a winess before any court, judge, justice, or any other officer out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial."

Stat. 1851, 115, substantially same as stat. 1855, omitting the last clause beginning with the word "unless."

Ø 1986. (§ 403.) The subpoena is issued as follows:

1. To require attendance before a court, or at the trial of an issue therein, it is issued under the seal of the court before which the attendance is required, or in which the issue is pending.

2. To require attendance out of the court, before a judge, justice or other officer authorized to administer oaths or take testiC. C. P.-54,

mony in any matter under the laws of this state, it is issued by the judge, justice or any other officer before whom the attendance is required.

3. To require attendance before a commissioner appointed to take testimony by a court of a foreign country, or of the United States, or of any other state in the United States, or of any other district or county within this state, or before any officer or officers empowered by the laws of the United States to take testimony, may be issued by any judge or justice of the peace in places within their respective jurisdiction; with like power to enforce attendance, and, upon certificate of contumacy to said court, to punish contempt of their process, as such judge or justice could exercise if the subpœna directed the attendance of the witness before their courts in a matter pending therein.

See N. Y. C. C. P. § 1797; and Or. C. C. P. § 780.

Stat. 1865-6, 708.

Stat. 1853, 218, inserted in subdivision 1, the words, "in the name and" between "issued" and "under"; also omitted from subdivision 3, the words, "or before any officer or officers empowered by the laws of the United States to take testimony."

Stat. 1851, 115, was same as stat. 1859, inserting instead of subdivision 3, the words: 3d. To require attendance before a commissioner appointed to take testimony by a court of any other state or county, it may be issued by any judge or justice of the peace, in places within their respective jurisdictions."

§ 1987. (§ 404.) The service of a subpoena is 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. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Such service may be made by any person.

See Or. C. C. P. § 782.

1988. (§ 405.) If a witness is concealed in a building or vessel, so as to prevent the service of a subpoena upon him, any court or judge, or any officer issuing the subpoena, 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 subpœna; and the sheriff must serve it accordingly, and for