Copyright
California.

The codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 3 Code of Civil Procedure) online

. (page 138 of 168)
Online LibraryCaliforniaThe codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 3 Code of Civil Procedure) → online text (page 138 of 168)
Font size
QR-code for this ebook


As to presumption of correctness of surveys made by public
offlcers, see brief 55 L. 899.

As to provisions for establishing unsettled or inadequately
marked boundaries of counties, see Kerr's Cyc. Pol. C. S§ 3969
et seq. and notes.

As to re-establishing lost corners, see 22 A. S. 35.

As to rejection of false descriptions, see 30 A. D. 36; 40
A. D. 109.

As to relative value of courses and distances, see 30 A. D. 740.

As to relative value of distances, see 30 A. D. 741.

As to relative value of quantity, see 30 A. D. 741.

As to rivers and lakes as state boundaries, see 15 L. 187-
189; brief 29 L. 390.

As to rivers as boundaries, see Kerr's Cyc. C. C. P. § 207 7,
note pars. 196-204 this note; also 8 L. 579; 10 L. 207, 208; 42
L. 502-513.

As to rule that monuments control, not being inflexible, see

30 A. D. 740.

As to running side-lines of water lots, see 23 A. D. 536.

As to standard of measures, see Kerr's Cyc. Pol. C. §§ 3209 et
seq. and notes.

As to survey, plan, or previous conveyance referred to in
deed, see 30 A. D. 741.

As to test of navigability, see 10 A. D. 385-389; 27 A. S. 56-58.

As to tide-water as boundary, see 42 L. 502-513.

As to trees on boundary-line, property rights in, see 82 A. D.
330; 21 L. 729; brief 29 L. 583.

As to unnavigable lak? as boundary, see 8 L. 579; also briefs
IS L. 670; 66 L. 829.

1518



Ch. I.] DIVORCE— ADMISSIONS. §§2078.2079

As to validity of statute to provido for rst;ililisliin<iit of
boundaries, see l)rief 33 L. 432.

As to waters in California declared navigablf \>y act of let^is-
laturo, see Kerr's Cye. Pol. C. § 2340 and note.

As to what are highways, by legislative acts, see Kerr's
Cyc. Pol. C. § 2018 and note.

As to what is thread of stream, see 27 A. S. 58.

As to what waters are public ways, see Kerr's Cyc. Pol. C.
§ 2348 and note.

Public land surveys. — As to surveys of pulilic lands, see
U. S. Rev. Stats. §§2395-2413; 6 Fed. Stats. Ann. pp. 363-380 and
notes.

§2078. (OMI'HO.niSE OFFER OF >0 AVAIL. An offer of
compromise is not an admission that anything is due.

IliHtury: Enacted March 11, 1872.

See Kerr's Cyc. C. C. P. for 6 pars, annotation.

81, C. 398, 405, 22 P. 871. 873 (cited).

As to many miscellaneous matters of evidence, see note § 1823,
ante.

As to offer to compromise, made after suit brouglit, see
Kerr's Cyc. C. C. P. § 997 and note.

§2079. IN ACTION FOR DIVORCE, ADMISSION NOT
SUFFICIENT. In an action for divorce on tlie 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.

Hintor.v: Enacted March 11, 1872.

See Kerr's Cyc. C. C. P. for 2 pars, annotation.

As to confessions, see Kerr's Cyc. C. C. P. §1870 stibd. 2
and note.

As to corroborative evidence, see Kerr's Cyc. C. C. P. § 1839
and note.

As to divorce not being granted upon dcfriult of defendant,
or upon uncorroborated statement, admission, or testhnonv of
parties, see Kerr's Cyc. C. C. § 130 and note.

As to many miscellaneous matters of cxidiiirc, sie note
§ 1823, ante.



1 r. 1 !t



§§ 20S3, 2US.1 ciiDK nK CIVII. ruoCBDURE. f I't.l V\Tit.Vl.

CHAPTER II.

PROCEEDINGS TO PERPETUATE TESTIMONY.

§ 2083. Evidence may be perpetuated.

§ 2084. Manner of application for order.

§ 208B. Notice of time and place to be given.

§ 2086 Manner of taking the deposition.

§ 2087. Papers prima facie evidence.

S 2088. When the evidence may be produced.

§ 2089. Effect of the deposition.

§2083. EVIDENCE MAY BE PEEPETUATED. The testi-
mony of a witness may be taken and perpetuated as provided
in this chapter.

History: Enacted March 11, 1872, re-enactment of § 437 Prac-
tice Act as amended April 12, 1859, Stats. 1859, p. 219.

As to depositions in perpetuam, see 20 A. D. 137; 20 A. D.
683; 47 A. D. 353.

As to inany miscellaneous inatters of evidence, see note § 1823.
ante.

§2084. MANNER OF APPLICATION FOR ORDER. The

applicant must produce to a judge of the superior court a
petition, verified by the oath of the applicant, stating:

1. That the applicant expects to be a party to au action in
a court in this state, and, in such case, the names of the per-
sons 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 Tfitness to be examined, his place of resi-
dence, and a general outline of the facts expected to be proved.

[Jndge to designate officer to take testimony — Return.] The
judge to whom such petition is presented must make au order
allowing the examination, and designating the officer before

1520



Ch. II.] PERPETUATING TESTIMONY— NOTICE. S§ 2085, 20S6

whom the same must be taken, and prescribing the notice to
be given, which notice, if the parties expectant are known and
reside in this state, must be personally served, and, if un-
known, such notice must be served on the clerk of the county
where the property to be affected by such evidence is situated,
or the judge making tlie order resides, as may be directed by
him, and by publication thereof in some newspaper, to be des-
ignated by the judge, for the same period required for the
publication of summons. The judge must also designate in
his order the clerk of the county to whom the deposition must
be returned when taken.

Hintur>-! Enacted Marcli 11, 1872, re-enactment of §438 Prac-
tice Act as amended April 12, 1859, Stats. 1859, p. 219; amended
March 24, 1874, Code Amdts. 1873-4. p. 391; April 16, 1880, Code
Amdts. 1880 (C. C. P. pt.), p. 116.

§2085 NOTICE OF TIME VXD PLACE TO BE GIVEN.

The person appointed by the judge to take the depositions is
authorized, if a resident of this state, on receiving a copy of
the order of the judge, and of the notice prescribed in the
last section, with proof of its personal service or publication;
or. if a resident without the state, on receiving the com-
mission mentioned in the next section, with proof of like
service of publication of the notice; to take the deposition of
the witness named in the order of the judge, or in the com-
mission, or, if more than one witness is thus named, of such
of them as appear before him, at the time designated, and the
taking of the same may be continued from time to time.

HiNtory: Enacted IMarcli 11, 1872, re-enactment of § 439 Prac-
tice Act, as amended April 12, 1859, Stats. 1859, p. 219; amended
Marcli 24, 1874, Code Amdts. 1873-4, p. 392.

§2086. MANNER OF TAKING THE DEPOSITION. The

examination must be by question and answer, and if the
testimony is to be taken in another state, it must be taken
upon a commission to be issued by the judge allowing the
examination, under the seal of the court of which he is judge,
and upon interrogatories, to be settled in the same manner
as in cases of depositions taken under commission in pending
Kerr's C. C. P.— 96 1521



§S 2087, 2088 CODE OP CIVIL PROCEDURE. [Pt.IV.Tit.VI.

actions, unless the parties expectant, if known, otherwise
agree. If such parties are unknown, notice of the settlement
of the interrogatories sliall be published in some newspaper
for such time as the judge may designate. The deposition,
when completed, must be carefully read to and subscribed by
the witness, then certified by the officer or person taking the
same, and shall then be sealed up and delivered or trans-
mitted to the clerk of the county designated in the order of
the judge allowing the examination, who shall file the same
when received. The judge allowing the examination shall file
with the clerk the order for the examination, the petition on
which the same was granted, with proof of service of the
order and notice.

History: Enacted March 11, 1872, re-enactment of § 440 Prac-
tice Act as amended April 12, 1859, Stats. 1859, p. 219; amended
March 24, 1874, Code Amdts. 1873-4, p. 392.

§ 2087. PAPERS PRIItf A FACIE EVIDENCE. The petition
and order, and papers filed by the judge, as provided in section
two thousand and eighty-six, or a certified copy thereof, are
prima facie evidence of the facts stated therein to show com-
pliance with the provisions of this chapter.

History: Enacted March 11, 1872; amended March 24, 1874,
Code Amdts. 1873-4, p. 393.

S208S. WHEN THE EVIDENCE MAT BE PRODUCED.

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 that they cannot be
found, or are unable, by reason of age or other infirmity, to
give their testimony, the depositions or copies thereof may be
used by either party, subject to all legal objections; but if
the parties attended 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.

History: Enacted March 11, 1872, re-enactment of § 442 Prac-
tice Act as amended April 12, 1859, Stats. 1859, p. 219; amended
March 24, 1874, Code Amdts. 1873-4, p. 393.

1522



Ch. II.] EFFECT OF DEPOSITION. S 2089

Practice Act §442. — 3 C. 122, 127, 128 (crroiu'ously oit.-il for
§ 443 Practice Act).

As to many miscellaneous matters of evidence, see note
§ 1823, ante.

§2089. EFFECT OF THE DEPOSITION. The deposition
so taken and read in evidence has the same effect as the oral
testimony of the 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.
IIi.<story: Enacted March 11, 1872.



1523



S 2093 CODE OF CIVIL PROCEDURK. [Pt.IV.Tit.VI.

CHAPTER III.

ADMINISTRATION OF OATHS AND AFFIRMATIONS.

S 2093. Judicial and certain officers authorized to administer

oatlis.
§ 2094. Form of ordinary oath to a witness.
§ 2095. Form may be varied to suit witness' belief.
S 2096. Same. [Witness not Christian.]
§ 2097. Any person who prefers it may declare or affirm.

§2093. JUDICIAL AND CERTAIJf OFFICERS AUTHOR-
IZED TO ADMINISTER OATHS. Every court, every judge,
or clerk of any court, every justice, and every notary public,
and every officer or person authorized to take testimony in
any action or proceeding, or to decide upon evidence, has
power to administer oaths or affirmations.

History: Enacted March 11, 1872, re-enactment of § 443 Prac-
tice Act.

See Kerr's Cyc. C. C. P. for 19 pars, annotation.

Cocte section. — 56 C. 464, 465 (construed): 56 C. 588. 590
(applied): 64 C. 267, 269, 30 P. 816, 817 (cited): 120 C. 168, 169,
52 P. 305 (applied); 121 C. 529, 53 P. 1096 (applied without
citation); 128 C. 415, 420, 60 P. 1032 (cited); 6 C. A. 492, 501.
92 P. 513, 517 (deputy county clerk may administer oaths).

Practice Act §443. — 3 C. 94, 97 (cited); 3 C. 122, 127 (erro-
neously cited as § 442, Practice Act).

As to administration of oath by arbitrators, see Kerr's Cyc.
C. C. P. § 1284 and note.

As to irregularities in tlie manner in wliicli oath is admin-
istered being no defense to a prosecution for . perjury, see
Kerr's Cyc. Pen. C. § 121 and note.

As to many miscellaneous matters of evidence, see note
§ 1823, ante.

As to oaths — Administration of, by whom, see Kerr's Cyc.
C. C. P. §§ 128 subd. 7, 177 subd. 4 and notes, Kerr's Cyc. Pol.
C. §§ 1028, 4103, 4118 and notes.

Same— Definition of. — See Kerr's Cyc. C. C. P. § 17 and note;
Kerr's Cyc. Pen. C. §§ 14, 17, 119 and notes.

As to officers autliorized to administer oaths and affirma-
tions, see Kerr's Cyc. C. C. P. §§ 128 subd. 7, 177 subd. 4. 259.
812, 2012 and notes; Kerr's Cyc. Pol. C. §§252, 812, 1028. 1077,
1146, 1873, 2784, 2951, 3031, 3699, 4103, 4118 and notes; Kerr's
Cyc. C. C. § 1021 and note.

1524



Ch. Ill] FORM OF OATH— VARYING. SS 2094, 2095

As to perjury, see Kerr's Cyc. Pen. C. §§118-128 and notes.

As to subornation of perjury, see Kerr'.s Cyc. Pen. C. §§ 127,
128 and notes.

As to verification b^ing' an affidavit, see Kerr's Cyt"- <-'• C P.
§ 2009 and note.

As to verification of pleadings, sec Kerr's Cyc. c;. C. P. §ii i'M.
446 and note.

§ 2094. FORM OF ORDINARY OATH TO A WITNESS. An

oath, or affirmation, in an action or proceeding:, may be ad-
ministered as follows, the person who swears, or affirms, ex-
pressing his assent when addressed in the following form:
"You do solemnly swear (or affirm, as the case may be), that
the evidence you shall give in this issue (or matter), pending

between and , shall be the truth, the whole truth,

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

HiM<ory; Enacted March 11, 1872; amended March 24, 1874,
Code Amdts. 1873-4, p. 394: by Code Commission, Act March 8,
1901, Stats, and Amdts. 1900-1, p. 257, act held unconstitutional,
see history, § 5 ante.

See Kerr's Cyc. C. C. P. for 5 par.**, annotation.

136 C. 332, 337, 68 P. 976, 977 (applied): 136 C. 520. 521, 69
P. 223 (construed): 139 C. 600, 601. 73 P. 423 (applied): 6 C.
A. 492, 501, 92 P. 513, 517 (substance of oath prescribed I'y
statute is sufficient).

As to duty of party to produce books, papers, or documents
when examined as witness, see Kerr's Cyc. C. C. P. S 1000 and
note.

As to form of oath of office, see Kerr's Cyc. Pol. C §!)0t
and note; also Const. 1879. art. XX, S3, Hen. O. T>. p. civ.

As to iriany miscellaneous matters of evidence, see note
§ 1823, ante.

S2095. FORM MAY BE VARIED TO SllT WITNESS'
BELIEF. 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.
History: Enacted March 11, 1872.

See Kerr's Cyc. C. C. P. for 3 pars, annotation.
99 C. 564, 569, 34 P. 231 ^applied).

1525



§§2096,2097 CODE OF CIVIL I'ROCEDURE. [Pt.lV.Tit.VI.

As to many miscellaneous matters of evidence, see note § 1823.
ante.

As to persons not being excluded as witnesses on account
of their opinion on matters of religious belief, see Kerr's Cyc.
C. C. P. § 1879 and note.

§2096. SAME. [WITNESS NOT CHRISTIAN.] 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.

History: Enacted March 11, 1872.

99 C. 564, 569, 34 P. 231 (applied).

As to many miscellaneous matters of evidence, see note
§ 1823, ante.

§ 2097. ANY PEESON WHO PREFERS IT MAY DECLARE
OR AtTIRM. 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 two thousand and ninety-four.

History: Enacted March 11, 1872, founded on § 445 Practice
Act; repealed by Code Commission, Act March 8, 1901, Stats,
and Amdts. 1900-1, p. 257. act held unconstitutional, see history,
§ 5 ante.



1526



Ch. TV.] QTTESTION OF FACT— rniAT.. §2101

CHAPTER IV.

GENERAL PROVISIONS.

§ 2101. Questions of fact, how tried.

S 2102. Questions of law addressed to the court.

S 2103. Questions of fact by court or referee.

§ 2101. Moneys paid into court (repealed).

§2101. QUESTIONS OF FACT, HOW TRIED. All ques-
tions of fact, where the trial is by jury, other than ^those men-
tioned in the next section, are to be decided by the jury, and
all evidence thereon is to be addressed to them, except when
otherwise provided by this code.

History: Enacted March 11, 1872; amended March 24, 1874,
Code Amdts. 1873-4, p. 394.

See Kerr's Cyc. C. C. P. for 18 pars, annotation. .

5 C. A. 622, 623, 91 P. 115, 116 (action of court in setting
aside verdict for plaintiff, in action for deatli. wlien not viola-
tion of constitutional right of trial by jury).

As to agency, see briefs 7 L. 750; 70 L. 739.

As to alteration of instruments, see 63 A. D. 265. 266.

As to capacity of boy charged witli contrilmtory negligence,
being question for jury, see brief 61 L. 120.

As to capacity of child to exercise care for his own safety
being question for jury, see briefs 61 L. 611, 63 L. 657.

As to contract, existence and terms of, being for jury, see
4 L. 204.

As to contributory negligence, when question for jury, see
79 A. D. 727; 87 A. D. 684; 90 A. D. 407; 93 A. D. 494: 100 A. D.
618; 15 A. R. 639; 29 A. R. 102; 51 A. R. 603: 4 L. 53; 6 L.
214, 215: 13 L. 728, 729; 38 L. 786-790; briefs 11 I.,. 674: 15 I..
326; 28 L. 486; 31 L. 785: 33 L. 497; 35 I.. 763; 36 L. 586; 53
L. 656; 53 L. 792; 54 K 260; 54 L. 803; 55 L. 429; 56 L. 98; 56
I.. 753; 57 L. 308; 57 L. 466; 58 L. 217; 58 L. 127; 60 U 581;
61 1.. 830; 64 K 345; 64 L. 542; 64 I.. 575; 66 I.. 945: 70 1.. 753;
70 L. 609.

As to dangerous character of substance confined on iimi)-
erty being question for jury, see brief 62 L. 950.

As to dependency of one suing for death, see brief 51 L. 936.

As to discrimination by public service corporation, wlietlier
just or unjust, ([uestion for jury, see brief 58 L. 285.

As to extent of authority of agent, see l)rief 66 Ij. 596.

As to false pi-etenses, see brief 45 li. 424.

1527



§ 2101 CODE OF Civile PKOCEDURE. [Pt.IV.Tit.VI.

As to fraud, see 4 L. 833; 37 L. 615.

As to fraudulent intent being question of fact, see Kerr's
Cyc. C. C. § 3442 and note.

As to good faith in case of all-eged libel, see brief 4 7 L. 223.

As to insanity, see 60 A. R. 213, 220, 221.

As to intoxicating character of liquor, see brief 58 L. 267.

As to jury as judges of law and fact, see 42 A. S. 290-295.

As to knowledge of usage being question of fact, see 18
A. R. 206.

As to libel and slander, province of jury in, see 5 I^. 645;
8 L. 214.

As to malice, see briefs 53 L. 447; 54 L. 856.

As to many miscellaneous matters of evidence, see note
§ 1823, ante.

As to necessity of worlt performed on Sunday, see briefs 58
L. 393; 60 L. 638.

As to negligence, see 7 A. R. 208; 59 A. R. 179, 180; 1 L. 173,
174; 13 L. 728, 729; 15 X.. 332, 333; 61 L. 589-591; briefs 3 L.
321; 29 L. 758; 30 L. 509; 37 L. 726; 38 L. 236; 40 L. 96; 52
L. 657; 54 L. 314; 54 L. 775; 55 L. 429; 57 L. 308; 62 L. 960;
67 L. 256; -69 L. 301; 69 L. 342; 69 L. 888; 70 L. 601.

As to nuisance, see Kerr's Cyc. C. C. §§ 3479 et seq. and notes;
also 58 A. D. 632.

As to nuisance, existence of, see brief 67 L. 984.

As to propriety of ejection of passenger from train, see brief
56 L. 225.

As to proximate cause of accident being question for jury,
see brief 64 L. 70.

As to proximate cause of death or injury, see 2 L. 696; briefs
49 L. 117; 49 L. 79; 63 L. 417; 64 L. 575; 40 L. 96; 59 L. 110:
63 L. 426; 60 L. 951; 69 L. 246; 69 L. 301.

As to question whether person had ceased doing business in
certain county being one for jury, see brief 63 L. 430.

As to reasonable rate of speed for street-car, see brief 51 I...
633.

As to reasonable time, see 2 L. N. S. 876.

As to reasonable use of water by riparian owner, see brief
51 L. 691.

As to reasonableness of delay in delivery by carrier, see
brief 66 L. 372.

As to reasonableness of rule or regulation being question for
jury, see briefs 2 L. 490; 50 L. 633.

As to reasonableness of sum tendered out of which common
carrier may be required to take passenger's fare and return
change, see brief 35 L. 489; note 35 L. 489, 490.

As to reasonableness of use of sidewalks Ijy merchants, see
brief 66 L. 73.

1528



Ch. TV.] QUESTIONS OF LAW— P'OIi COUiri'. §2102

As to safety of appliances fiirnislied liv master, sec- briof 69
L. 798.

As to scintilla of evidence being insufficient for siihniission tu
jury, see briefs 34 L. 577; 38 L. 427; 49 L. 641.

As to scope of employment, see briefs 55 L. 711; 67 L. 457.

As to substantial performance of contract, whether there has
been, being question of fact, see brief 51 L. 951.

As to sufficiency of facts to piit carrier on notice of danger
being question for jury, see brief 63 L. 498.

As to termination of passenger's relation as such, on reach-
ing termination, see 2 L. N. S. 873-876.

As to vacancy of premises within meanitig of insurance policy,
see brief 58 L. 235.

As to value of land in condemnation proceedings, see 3 Ij.
83, 84.

As to wantonness of act of conductor, see brief 66 li. 4.'i7.

As to weight and effect of evidence and credibility of wit-
nesses being matter for jury, see Kerr's Cyc. C. C. I'. § "JOfi] and
note.

As to whether artiiles furnished wife by merchant are neces-
saries, being question for jury, see brief 65 L. 530.

As to whether certain writings, used as standards. wer<^ made
by defendant, being question for jury, see brief 64 L. 30 4.

As to whether death of insured was caused by wilful ex-
posure to unnecessary danger, being question for jiiry. s(>e brief
64 L. 118.

As to whether paper writing constitutes will, see brief 69 L.
424.

As to whether i)erson working on building without (ire
escapes assumes risk, being question for jury, see lirief 61 Ij.
163.

As to whether there was notice of acceptance of guaranty,
being mixed question of law and fact for determination of jury,
.see brief 65 L. 731.

As to what issues must be sulimitted to a jury in a proc(>ed-
ing to contest probate of .-i will, see Kerr's ("!ye. (*. C 1'. §1'''12
and note.

Effect of evidence — Is for jury. — See Kerr's Cyc. C. <". T.
§ 2061 and note.

§2102. (HESTIONS OF LAW ADDRESSED TO THE
COURT. All questions of law, including tlie admissibility 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 it. Whenever the knowledge of the court

1529



§ 2102 CODE OF CIVIL PROCEDURE. [Pt.IV,Tit.VI.

is, by this code, made evidence of a fact, the court is to declare
such knowledge to the jury, who are bound to accept it.

History: Enacted March 11, 1872.

See Kerr's Cyc. C. C. P. for 20 pars, annotation.

113 C. 618, 625, 45 P. 860 (construed).

As to account stated, whether conversation sufficient to estab-
lish, see 27 L. 825, 826.

As to construction of written instrument, when proper ques-
tion for jury, see brief 66 L. 735.

As to contributory negligence, when question is to be deter-
mined by court, see 66 A. D. 410; 80 A. D. 53; 85 A. D. 694, 731;
100 A. D. 448; 37 A. R. 711; 50 A. R. 656.

As to court deciding questions of law, see Kerr'.s Pocket Pen.
C. §§ 1124, 1126.

As to fellow-servants, whether persons are, see briefs 58 L.
691; 64 L. 915; 66 L. 300.

As to interpretation of alleged wrongful publication, sec brief
58 L. 509.

As to jury being judges of law and fact in criminal cases, see
brief 19 L. 146.

As to jury determining law and fact in trial for libel, see
Kerr's Pocket Pen. C. § 1125.

As to knowledge of court, see Kerr's Cyc. C. C. P. § 1875 and
note.

As to knowledge of court and scope of judicial notice, see
Kerr's Cyc. C. C. P. § 1875 and note.

As to libel, whether publication as set out in complaint is
libelous per se, see 8 L. 214.

As to libel, whether communication is privileged, see briefs
53 L. 447; 54 L. 856; 51 L. 451.

As to many miscellaneous matters of evidence, see note
§ 1823, ante.

As to meaning and effect of certificate of deposit, see brief
58 L. 122.

As to negligence, when question for court, see 15 L. 332, 333;
38 L. 786-790; briefs 1 L. 430; 7 L. 688; 41 L. 288; 55 L. 912; 57 L.
820; 59 L. 477; 59 L. 699; 60 L. 288; 62 L. 875.

As to probable cause, see brief 56 Lf. 338.

As to reasonable time, when question of law and when ques-
tion of fact, see 17 A. D. 544-549.

As to reasonableness of tax, see brief 67 L. 798.

As to whether notice of death of insured person was ""imme-
diate," where facts are undisputed, being question for court,
see brief 62 L. 486.

As to whether statements in insurance applications are war-
ranties or simple representations, being question of law, see
brief 61 L. 337.

1530



Ch. IV.] TRIAL BEFORE COlTrr, REFEREE, l^TC S§ 2103, 2104

8 2103. QUESTIONS OF FACT BY COURT OR REFEREE.

The provisions contained in tliis part of tlie code respecting



Online LibraryCaliforniaThe codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 3 Code of Civil Procedure) → online text (page 138 of 168)