839. Witness, when arrest, the place of attendance, necessarily remaining there, and Oct. 11, 1862, returning therefrom. The arrest of a witness contrary to this section is void, and when willfully made, is a con- protected from tempt 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. Privilege from arrest. —A witness, when in attendance on a court of justice, is not protected from arrest on a criminal prosecution; but from arrest on civil process a witness is protected, not only while in attendance on the court, but when going to and returning from it; in other words, eundo, morando, et redeundo. And the rule is the same whether the witness attends voluntarily or on compulsion, and whether the tribunal he attends be a court and jury, or a commissioner or other officer authorized to take testimony: 1 Wharton on Evidence, 2d ed., sec. 389; 1 Greenl. Ev., 14th ed., secs. 316-318. Many of the cases go further than to exempt a witness from arrest merely, and even hold the service of a summons or other process to be an invasion of the prerogative of the witness; and as to non-resident witnesses coming into the state, courts will hold such service to be void, while as to resident witnesses, though the service may be valid, courts will usually set it aside: Dungan v. Miller, 37 N. J. L. 83; Halsey v. Stewart, 4 Id. 366; Parker v. Hotchkiss, 1 Wall. Jr. 272; Seaver v. Robinson, 3 Duer, €22; Massey v. Colville, 45 N. J. L. 119; S. C., 46 Am. Rep. 754. This privilege is said to extend to every case where attendance is a duty in conducting any proceeding of a judicial nature: I Greenl. Ev., sec. 317. Thus witnesses or parties have been held exempt from such arrest in the following instances, while coming voluntarily to attend court: Solomon v. Underhill, 1 Camp. 229; or while coming in pursuance of a subpoena: Dickinson's Case, 3 Harr. (Del.) 517; while voluntarily attending from another state: Juneau Bank v. Mc Spedan, 5 Biss. 64; Thompson's Case, 122 Mass. 428; S. C., 23 Am. Rep. 370; Person v. Pardee, 6 Hun, 477; S. C., sub nom Person v. Grier, 66 N.Y. 124; S. C., 24 Am. Rep. 35; Brett v. Brown, 13 Abb. Pr., Ñ. S., 297; Ballinger v. Elliot, 72 N. C. 596; while attending a police court as a prosecutor: Montague v. Harrison, 3 Com. B., N. S., 292; while attending a reference before a master in vacation: Vincent V. Watson, 1 Rich. 197; Huddeson v. Prizer, 9 Phila. 65; or the execution of a writ of inquiry: Walters v. Reese, 7 Mo. 34; attending the registrar's office with his solicitor to settle the terms of a decree: Newton v. Askew, 6 Hare, 319; or before an arbitrator under a rule of court: Spence v. Stewart, 3 East, 89; Moore v. Booth, 3 Ves. 350; or to give a deposition under a rule of court: United States v. Edme, 9 Serg. & R. 147; attending before commissioners of bankruptcy as a party or witness: Ex parte Burt, 2 Mont. D. & D. 666; Arding v. Flower, 8 Term Rep. 534; Ex parte Helsby, 1 Dea. & Ch. 16; Kimball's Case, 2 Ben. 38; Matthews v. Tufts, 87 N. Y. 568; where a defendant attends on the hearing of a motion against him: Bromiey v. Holland, 5 Ves. 2; attending before a master on a warrant to produce papers: Franklyn v. Coìghoun, 1 Madd. 580; attending before a land commission: Page v. Randall, 6 Cal. 32. The witness is exempt from arrest during the time of attendance on the court or tribunal, and while going to, remaining at, and returning from the court, and this is held to include the time during which a person is in the town where the court is held prior to the day on which the case is likely to be heard (where the witness came into town several days before the day of trial): Ex parte Tillotson, 2 Stark. 470; Persse v. Persse, 5 H. L. Cas. 671; while dining in the evening after Oct. 11, 1862, $839. Oct. 11, 1862, 840. Affidavit to procure discharge if arrested. Oct. 11, 1862, 841. attending court all day: Lightfoot v. ment of an examination: Ex parte Temple, 2 Ves. & B. 395; Ex parte Russell, 1 Rose, 278; while returning from attendance on a court: Evert's Case, 3 Disn. 33; Richards v. Goodson, 2 Va. Cas. 381; Hammerskoid v. Rose, 7 Jones, 629; while in a tailorshop on the way home: Pitt v. Coombs, 3 Nev. & M. 212; or while waiting redeundo in a picture-shop on the way, not an unreasonable time: Luntly v. 1 Cromp. & M. 579. § 850. [840] 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. § 851. [841.] The court, judge, or officer before whom the attendance of the witness is required may discharge charge witness a witness from an arrest made in violation of section 849 Court may dis from arrest. [839]. CHAPTER X. OF EVIDENCE IN PARTICULAR CASES, PROCEED- TITLE I.-OF EVIDENCE IN PARTICULAR CASES. II. OF PROCEEDINGS TO PERPETUATE TESTI § 856. Offer of compromise not an admission, but particular facts admitted § 857. Confession of adultery in suit for dissolution of marriage contract. 842. An offer in § 852. [842.] An offer in writing to pay a particular oct. 11, 1862, sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent writing to the actual production and tender of the money, in- tender. strument, or property. Plea of tender, effect as to but this section does not dispense costs: See § 561 [551]. Offer of payment, etc.- An offer to pay a debt is, under this section, a sufficient tender, and such tender will discharge a lien created by a chattel mortgage: Bartel v. Lope, 6 Or. 321; with readiness and ability to fulfill equivalent to 10 Or. 314. $ 843. Whoever pays § 853. [843.] Whoever pays money, or delivers an oct. 11, 1862, instrument or property, is entitled to a receipt therefor, from the person to whom the payment or delivery is or delivers made, and may demand a proper signature to such re- receipt. ceipt as a condition of the payment or delivery. entitled to $844. § 854. [844.] The person to whom a tender is made oct. 11, 1862, shall at the time specify any objection he may have to the money, instrument, or property, or he must be Oct. 11, 1862, $844. Objections to tender must be specified. Oct. 11, 1862, Rules for construing description of real property. 18 Or. 306. 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. § 855. [845.] 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 partic ulars, 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. Description generally. It was held that when one deed referred to another for a description of the granted premises, it was regarded as of the same effect as if the latter was copied into the deed itself: Vance v. Fore, 24 Cal. 444; Saunders v. Schmalzle, 49 Id. 59; Allen v. Bates, 6 Pick. 460; Foss v. Crisp, 20 Id. 121. When lines are laid down upon a plan, and referred to accordingly in a deed, they are to be regarded as giving the true description of the parcel, as much as if recited in the deed itself: Vance v. Fore, 24 Cal. 444; Davis v. Rainsford, 17 Mass. 207; Purchase v. Tiffany, 1 Me. 219; Thomas v. Patten, 13 Id. 329; Lunt v. Holland, 14 Mass. 149; Miller v. Cullum, 4 Ala. 576. If but one point can answer to that set forth in the description, it will be sufficient: Sherman v. McCarthy, 57 Cal. 507. To the point that boundaries and monuments govern courses and distances, see Lewis v. Lewis, 4 Or. 177. It was held that arbitrary rules of Oct. 11, 1862, construction were not to be invoked $ 845. if the intention of the parties could be plainly discovered without their aid: Kimball v. Semple, 25 Cal. 441. If a deed contains different descriptions, one of which applies to land which the grantor owned, and the other to land which he did not own, the former will be taken as true and the latter as false: Piper v. True, 36 Cal. 607. Any description will suffice which identifies the land granted with such certainty that the specific parcel intended to be ascertained, either by the calls of the instrument as applied to the land, or by aid of the descriptive portions of the grant: Banks v. Moreno, 39 Id. 239. $ 846. § 856. [846.] An offer of compromise is not an ad- Oct. 11, 1862, mission that anything is due; but admissions of particular facts, made in negotiation for compromise, may be promise not an proved, unless otherwise specially agreed at the time. Offer of com admission. 817. Confession of § 857. [847] In a suit for the dissolution of the mar- Oct. 11, 1862, riage contract, on the ground of adultery, a confession of adultery, whether in or out of the pleadings, is not of adultery. itself sufficient to justify a decree of dissolution. See § 495 [491], ante. tent evidence, but must be corrobo Confession of adultery is compe- rated: Evans v. Evans, 41 Cal. 107. TITLE II. OF PROCEEDINGS TO PERPETUATE TESTIMONY. § 858. Evidence may be perpetuated. § 859. Order for examination, how obtained. Service of the order and notice in case of non-residents, by whom taken. § 860. § 864. How objected to when produced. § 865. Power and duty of the officer taking the deposition. § 858. [848.] The testimony of a witness may be Id., § 848. taken conditionally and perpetuated, as provided in this Evidence title. may be perpetuated. |