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person whose interest is adverse, nor a party being a witness in the cases mentioned in section four hundred and twenty-three.
1. A driver is not a competent witness for his employer, in an action for negligently driving against one, without previously being released by his employer.-Finn v. Vallejo Wharf Co., 7 Cal., Jan. T.
2. One who has indemnified the sheriff for taking property by virtue of an execution, is not a competent witness for the sheriff in defense to a snit against him.—Howland v. Willetts, 5 Selden, 170.
394. [1854.] The following persons shall not be witnesses:
1st. Those who are of unsound mind at the time of their production for examination ;
2d. Children under ten years of age, who, in the opinion of the court appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly;
3d. Indians, or persons having one-half or more of indian blood, and negroes, or persons having one-half or more of negro blood, in an action or proceeding to which a white person is a party;
4th. Persons against whom judgment has been rendered upon a conviction for a felony, unless pardoned by the Governor, or such judgment has been reversed on appeal.
1. 3d. Held to apply to Chinese.-People v. Hall, 4 Cal., 399.
395. A husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband; nor can either, during the marriage, or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage. But this exception shall not apply to an action or proceeding by one against the other.
396. An attorney or counselor, shall not, without the consent of his client, be examined as a witness as [to] any communication made by the client to him, or his advice given thereon, in the course of professional employment.
1. Landsberger v. Gorham, 5 Cal., 450.
397. A clergyman or priest shall not, without the consent of the person making the confession, be examined as a witness as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs.
CHAP. CCX.-An Act to amend an Act entitled "An Act to regulate Proceedings in Civil Cases, in the Courts of Justice of this State," passed April twenty-ninth, eighteen hundred and fifty-one.
[Approved April 12, 1859.]
The People of the State of California, represented in Senate and
SECTION 1. Section four hundred and three of said Act is hereby amended as follows:
Section four hundred and three-The subpoena shall be issued as follows:
1. To require attendance before a Court, or at the trial of an issue therein, it shall be issued in the name and 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 Court, before a Judge, Justice, or other officer authorized to administer oaths, or take testimony in any matter under the laws of this State, it shall be issued by the Judge, Justice, or 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, it 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 subpoena directed the attendance of the witness before their Courts in a matter pending therein.
398. A licensed physician or surgeon shall not, without the consent of his patient, be examined as a witness, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient.
399. A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure.
400. The judge himself or any juror, may be called as a witness by either party; but in such case it shall be in the discretion of the court or judge to order the trial to be postponed or suspended, and to take place before another judge or jury.
401. When a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him.
MANNER OF COMPELLING THE ATTENDANCE OF WITNESSES, AND THEIR
402. [1855.] 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 witness 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.
403. The subpoena shall be issued as follows:
1st. To require attendance before a court, or at the trial of an issue
therein, it shall be issued in the name and under the seal of the court Am&
before which the attendance is required, or in which the issue is
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matter, under the laws of this state; it shall be issued by the judge, justice, or any other officer before whom the attendance is required;
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.
404. The service of a subpoena shall be 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. Such service may be made by any person.
405. If a witness be 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 subpoena; and the sheriff shall serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed.
406. A person present in court, or before a judicial officer, may be required to testify, in the same manner as if he were in attendance upon a subpoena issued by such court or officer.
407. It shall be the duty of a witness, duly served with a subpoena, to attend at the time appointed, with any papers 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.
1. A witness cannot be cross-examined except in reference to matters concerning which he has been examined in chief.-Thornburgh v. Hand, 7 Cal., Jan. T.
2. The admission of leading questions, in the examination of a witness, is always in the discretion of the court, subject however to be reviewed, and will not be regarded as error unless the discretion has been abused.—Budlong v. Van Nostrand, 24 Barb., 25.
408. A witness shall answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against him