Rules for construing

of lands.

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 ●bjecting afterwards.

2077. The following are the rules for construing description the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances' to determine it:

Compromi-e offer

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 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 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

conveyance;

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 ref erence to the map; otherwise the map is subordinate to other definite and ascertained particulars.

2078. An offer of compromise is not an admission of no avail. that anything is due.

for divorce,

not

2079. In an action for divorce on the ground of In action adultery, a confession of adultery, whether in or out admission of the pleadings, is not of itself sufficient to justify a sufficient. judgment of divorce.

CHAPTER II.

PROCEEDINGS TO PERPETUATE TESTIMONY.

SECTION 2083. Evidence may be perpetuated.

2084. Manner of application for order.

2085. Notice of time and place to be given.

2086. Manner of taking the deposition.

2087. Deposition to be filed.

2088. When the evidence may be produced.

2089. Effect of the deposition.

2083. (§ 437.) The testimony of a witness may Evidence be taken and perpetuated as provided in this Chapter. perpetu

2084. (§ 438.) The applicant must produce to a District Judge, or to a County Judge, an affidavit, stating:

1. That the applicant expects to be a party to an action in a Court in this State, and in such case, the names of the persons whom he expects will be adverse parties; or,

2. That the proof of some fact is necessary to perfect the title to property in which he is interested, or to establish marriage, descent, heirship, or any other matter which may hereafter become material to establish, though no suit may at the time be anticipated, or if anticipated, he may not know the parties to such suit; and,

3. The name of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved. The Judge to whom such petition is presented, must make an order, allowing

may be ated.

Manner of

application

for order.

Notice of time and

place to be given.

Manner of

taking the

the examination and prescribing the notice to be given, which notice, if parties are known and reside in this State, must be personally served on them, and if unknown, such notice must be served on the Clerk of the county where the property to be affected by such evidence is situated, and a notice thereof published in some newspaper to be designated by the Judge making the order.

2085. (§ 439.) Upon proof of service of the notice, the person before whom the depositions are ordered to be taken must proceed to take the depositions of the witnesses named in the petition upon the facts therein set forth, and the taking of the same may be continued, from time to time, in the discretion of such person.

2086. ($440.) The examination must be by quesdeposition. tion and answer, and if the testimony is to be taken in another State, it must be taken upon interrogatories settled in the same manner as in cases of depositions, unless the parties otherwise agree. The deposition, when completed, must be carefully, read to and subscribed by the witness, then certified by the Judge, and immediately thereafter filed in the office of the Clerk of the county where it was taken, together with the order for the examination of the witness, the affidavit on which the same was granted, and the affidavit of service of the affidavit, order, and notice.

Deposition to be filed.

When the evidence may be .produced.

2087. The affidavits filed with the deposition, or a certified copy thereof, are primary evidence of the facts stated therein, to show compliance with the provisions of this Chapter.

2088. (§ 442.) If a trial be had between the parties named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the facts which such

depositions prove, or tend to prove, upon proof of the death or insanity of the witnesses or their inability to attend the trial by reason of age, sickness, or settled infirmity, the depositions, or certified copies thereof, may be used by either party, subject to all legal objections; but if the parties attend at the examination, no objection to the form of an interrogatory can be made at the trial, unless the same was stated at the examination.

of the

2089. The deposition so taken and read in evi- Effect dence has the same effect as the oral testimony of the deposition. witness, and no other, and every objection to the witness, or to the relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if he were examined orally at the trial.

CHAPTER III.

ADMINISTRATION OF OATHS AND AFFIRMATIONS.

SECTION 2093. Judicial and certain officers authorized to administer oaths.

2094. Form of ordinary oath to a witness.

2095. Form may be varied to suit witness' belief.

2096. Same.

2097. Any person who prefers it may declare or affirm.

and certain

authorized

2093. Every Court, every Judge, or Clerk of any Judicial Court, every Justice, and every Notary Public, and officers every officer or person authorized to take testimony in to adminisany action or proceeding, or to decide upon evidence, has power to administer oaths or affirmations.

2094. An oath is usually administered as follows: The person who swears, expressing his assent, when addressed in the following form: "You do swear, in the presence of the everlasting God, that the evidence you shall give in this issue (or matter) pending be

ter oaths.

Form of oath to a

ordinary

witness.

Form may be varied to suit witness'

belief.

Same.

Any person

who prefers

it may declare

or affirm.

tween

and

shall be the truth, the whole truth, and nothing but the truth, so help you God."

2095. Whenever the Court before which a person is offered as a witness is satisfied that he has a peculiar mode of swearing, connected with or in addition to the usual form of administration, which, in his opinion, is more solemn or obligatory, the Court may, in its discretion, adopt that mode.

2096. When a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such.

2097. Any person who desires it may, at his option, instead of taking an oath make his solemn affirmation or declaration, by assenting, when addressed, in the following form: "You do solemnly affirm (or declare) that," etc., as in Section 2094.

Questions

of fact to

CHAPTER IV.

GENERAL PROVISIONS.

SECTION 2101. Questions of fact to be decided by jury, and the evidence addressed to them.

2102. Questions of law addressed to the Court.

2103. Questions of fact by Court or referees.

2101. All questions of fact, other than those men

be decided tioned in the next section, are to be decided by the

by jury,

and the evidence addressed to them.

Questions of law

to the

Court.

jury, and all evidence thereon addressed to them, except when otherwise provided by this Code.

2102. All questions of law, including the admissiaddressed bility of testimony, the facts preliminary to such admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the Court, and all discussions of law addressed to