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§ 1856. 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 person, in a case where the disobedience of the witness may be punished as a contempt, is exonerated from arrest, in a civil action, 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 wilfully made, is a contempt of the court; and the person making it, is responsible to the witness arrested, for double the amount of the damages which may be assessed against him, 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.

§ 1857. But an officer is not so liable, unless the person claiming exemption make, if required, an affidadavit, stating:

1. 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:

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.

§ 1858. The court or officer issuing the subpoena, and the court or officer before whom the attendance is required, may discharge the witness from an arrest made in violation of section 1856. If the court have adjourned before the arrest, or before application for the discharge, a judge of the court, or a county judge, may grant the discharge.





CHAPTER I. Evidence in particular cases.
II. Proceedings to perpetuate testimony.
III. Administration of oaths and affirmations.
IV. General provisions.



SECTION 1859. An offer equivalent to payment. 1860. Whoever pays entitled to receipt.

1861. Objections to tender must be specified.

1862. Rules for construing description of lands.

1863. Compromise offer of no avail, but admission of facts may be shown. 1864. In action for divorce, admission not sufficient.

§ 1859. 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.

§ 1860. 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.

§ 1861. The person to whom a tender is made, must 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.

§ 1862. 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 the first mentioned particulars:

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 incon

sistent with each other, that of angles is paramount to that of surfaces, and that of lines, paramount to both:

4. When a road, or a 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 convey


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.

§ 1863. An offer of compromise is not an admission, that any thing is due; but admissions of particular facts, made in a negotiation for a compromise, may be proved, unless otherwise specially agreed at the time.

§ 1864. In an action for divorce, on the ground of adultery, a confession of adultery, whether in or out of the pleadings, is not of itself sufficient to justify a judgment of divorce.



SECTION 1865. Evidence may be perpetuated.
1866. Manner of application for order.

1867. Notice of time and place to be given.
1868. Manner of taking the deposition,

1869. Deposition to be filed.

1870. When the evidence may be produced.
1871. Effect of the deposition.

§ 1865. The testimony of a witness may be taken conditionally and perpetuated, as provided in this chapter.

§ 1866. The applicant must produce to a judge of the supreme court, or to a county judge, an affidavit, stating,

1. That the applicant is a party, or expects to be a party, to an action in a court of this state:

2. That the testimony of a witness, residing in this state, whose place of residence is stated, is necessary to the prosecution or defence of such action: and generally the facts expected to be proved:

3. If the action be not actually commenced, that the party named who is expected to be adverse to the applicant, resides in this state, and is of full age.

The judge may thereupon, in his discretion, make an order, allowing the examination, and prescribing how long before the examination, the order and notice of the time and place therefor must be served.

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