very fact in issue, or to a fact from which the fact at issue would be presumed. But a witness shall answer as to the fact of his previous conviction for felony.

Disobeying subpoena. Contumacy of witness.

§ 409.* Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court, or officer issuing the subpoena, or requiring the witness to be sworn; and if the witness be a party, his complaint may be dismissed, or his answer stricken out.

Forfeiture and damages for disobedience.

§ 410.* A witness disobeying a subpoena shall also forfeit to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend; which forfeiture and damages may be recov ered in a civil action.

Attachment of witness.

§ 411.* In case of failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the sheriff of the county to arrest the witness and bring him before the court or officer where his attendance was required.

*Applicable to justices' courts, see 620.

Witnesses in jail.

§ 412.* If the witness be a prisoner, confined in a jail or prison within this State, for any other cause than a sentence for felony, an order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer for the purpose of being orally examined, may be made, as follows:

First. By the court itself, in which the action or special proceeding is pending.

Second. By a judge of the supreme court, district court, or county judge of the county where the action or proceeding is pending, if before a judge or other person out of court.

Order. Affidavit.

§ 413.* Such order can only be made upon affidavit, showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.

Production of witness. Deposition.

§ 414.* If the witness be imprisoned in the county where the action or proceeding is pending, and for a cause other than a sentence for felony, his production may be required. In all other cases, his examination, when allowed, shall be taken upon deposition.

Witnesses privileged from arrest.

$415. Every person who has been in good faith served with a subpoena to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the witness may be punished as a contempt,

* Applicable to justices' courts, see 620.

shall be exonerated from arrest, in a civil action, while going to the place of attendance, necessarily remaining there, and returning therefrom.

[6 Cal. 32.]

Affidavit of privilege.

§ 416. The arrest of a witness contrary to the last section shall be void; but an officer shall not be liable to the party for making the arrest in ignorance of the facts creating the exoneration, but shall be liable for any subsequent detention of the party, if such party claim the exemption and make an affidavit stating:

First. That he has been served with a subpoena to attend as a witness before a court, officer, or other person; specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and,

Second. That he has not been thus served by his own procurement with the intention of avoiding an arrest.

Third. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and shall exonerate him from liability for discharging the witness when arrested.

* Applicable to justices' courts, see 620.

CHAPTER III.

OF THE EXAMINATION OF PARTIES TO AN ACTION OR PRO

CEEDING, AND OF PERSONS FOR WHOSE

IMMEDIATE BENEFIT SUCH ACTION OR PROCEEDING IS PROSECUTED

OR DEFENDED.

Bills of discovery not allowed.

§ 417.* No action to obtain a discovery under oath, in aid of the prosecution or defense of another action or proceeding, shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner provided by this and the foregoing chapter.(a) [Amendment, approved April 27, 1863, 701.

[20 Cal. 496.]

[§ 418 was repealed by act of April 27, 1863, 701.] (b)

Rebuttal of testimony of adverse party.

*

§ 419. The examination of a party, thus taken, may be rebutted by adverse testimony.

Refusal of adverse party to testify, effect of.

§ 420.* If an adverse party refuse to attend and testify at the trial, or to give his deposision before trial, or upon a commission, when required, his complaint or answer may be stricken out, and judgment be taken against him; and he

Applicable to justices' courts, see 620.

(a) The original section did not contain the words "and the foregoing."

(b) The repealed section 418 provided for the examination of a party at the instance of the adverse party.

may be also, in the discretion of the court, proceeded against as in other cases for a contempt. (a) [Amendment, approved April 27, 1863, 701.

[§§ 421, 422, and 423 were repealed by act of April 27, 1863, 701.](b)

§ 424.* An affidavit to be used before any court, judge, or officer of this State, may be taken before any judge or clerk of any court, or any justice of the peace, or notary public in this State.

Affidavits taken in another state.

$425.* An affidavit taken in another state of the United States, to be used in this State, shall be taken before a commissioner appointed by the governor of this State to take affidavits and depositions in such other state, or before any judge of a court of record having a seal.

* Applicable to justices' courts, see 620.

(a) The original section differed from the text in having a provision for striking out the reply.

(b) The repealed sections 421, 422, and 423 contained provisions in regard to the examination of parties. Section 422 had previously been amended by act of May 18, 1861, 521, and section 423 by act of May 15, 1854, 84.