entered by the clerk in the judgment book, and shall there upon have the effect of a judgment.

[14 Cal. 390.]

Vacation of award.

§ 386. The court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, in its discretion:

First. That it was procured by corruption or fraud.

Second. That the arbitrators were guilty of misconduct, or committed gross error in refusing, on cause shown, to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced.

Third. That the arbitrators exceeded their powers in making their award; or that they refused, or improperly omitted, to consider a part of the matters submitted to them; or that the award is indefinite, or cannot be performed. [2 Cal. 599; 7 Cal. 312; 31 Cal. 128.]

Modification and correction of award.

§ 387. The court may, on motion, modify or correct the award, where it appears:

First. That there was a miscalculation in figures, upon which it was made, or that there is a mistake in the description of some person or property therein.

Second. When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matter submitted.

Third. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded.

Appeal.

§ 388. The decision upon the motion shall be subject to appeal in the same manner as an order which is subject to appeal in a civil action; but the judgment entered before a motion is made shall not be subject to appeal.

Damages for revocation of submission.

$389. If a submission to arbitration be revoked, and an action be brought therefor, the amount to be recovered shall only be the costs and damages sustained in preparing for and attending the arbitration.

CHAPTER V.

OFFER OF THE DEFENDANT TO COMPROMISE THE WHOLE OR A PART OF AN ACTION.

Offer to allow judgment. Proceedings. Effect.

§ 390. The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judg ment to be taken against him, for the sum or property, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance, and the clerk shall thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he shall not recover costs, but shall pay the defendant's coste, from the time of the offer.

[17 Cal. 582.]

TITLE XI.

OF WITNESSES, AND OF THE MANNER OF OBTAINING EVIDENCE.

Who may

CHAPTER I.

OF WITNESSES.

be witnesses.

§ 391.* All persons, without exception, otherwise than as specified in this chapter, may be witnesses in any action or proceeding. Facts which have heretofore caused the exclusion of testimony, may still be shown, for the purpose of affecting its credibility.(a) [Amendment, approved April 27, 1863, 701.

Religious belief or interest not to disqualify.

§ 392.* No person shall be disqualified as a witness in any action or proceeding on account of his opinions on matters of religious belief, or by reason of his interest in the event of the action or proceeding as a party thereto, or otherwise; but the party or parties thereto, and the person in whose behalf such action or proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce, or by deposition, or upon a commission, in the same manner and subject to the same rules of examination as any other witness, on behalf of himself, or either or any of the parties to the

* Applicable to justices' courts, see 620.

(a) The original section consisted of the first sentence of the text alone.

action or proceeding. (a) [Amendment, approved April 27, 1863, 701.

[17 Cal. 605.]

[As to impeaching or discrediting a witness by showing general bad character for truth, honesty, or integrity, see post, 725.]

When representative of deceased person party.

§ 393.* No person shall be allowed to testify under the provisions of section three hundred and ninety-two, where the adverse party, or the party for whose immediate benefit the action or proceeding is prosecuted or defended, is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased person; and nothing contained in said section shall affect the laws in relation to the attestation of any instrument required to be attested; nor shall anything contained in said section render any person who, in a criminal proceeding, is charged with the commission of any public offense, competent or compellable to give evidence therein for or against himself. (6) [Amendment, approved April 27, 1863, 701.

[22 Cal. 572; 26 Cal. 23.]

* Applicable to justices' courts, see 620.

(a) The original section was substantially the same as the first part of the text, down to and including the words "in the event of the action or proceeding."

It was amended, May 15, 1854, 84, by excluding parties and persons for whose immediate benefit the action or proceeding was to be prosecuted or defended, and persons whose interest was present, certain, and vested.

(b) The original section provided that the provisions of the original section 392 should not apply to parties or persons for whose imme diate benefit the action was prosecuted or defended.

It was amended, May 15, 1854, 84, providing for the true test of interest which would render a witness incompetent.

Persons excluded.

§ 394.* The following persons shall not be witnesses: First. Those who are of unsound mind at the time of their production for examination.

Second. 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.

Third. Mongolians, Chinese, or Indians, or persons hav ing one-half or more of Indian blood, in an action or proceeding wherein a white person is a party.

Fourth. 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.(a) [Amendment, approved March 16, 1863, 60; took effect from passage.

[4 Cal. 399; 10 Cal. 66; 13 Cal. 73.]

Husbands and wives as witnesses.

$395.* A husband may be a witness for or against his wife, and a wife may be a witness for or against her husband, and where husband and wife are parties to an action or proceed

* Applicable to justices' courts, see 620.

(a) The original section excluded Indians, or persons having onefourth or more of Indian blood, and negroes or persons having onehalf or more negro blood, in actions to which a white person was a party. It did not mention persons convicted of felony, nor did it mention Mongolians or Chinese, except so far as they might be comprehended under the term Indians.

It was amended, May 15, 1854, 84, so as to read like the text, except that negroes were excluded as in the original section, Mon golians and Chinese were not mentioned.