or some part thereof remains unsatisfied; and shall specify the amount due thereon.

summons.

SEC. 371. Upon such summons the defendant may answer within Answer to the time specified therein, denying the judgment, or setting up any defence which may have arisen subsequently; or he may deny his liability on the obligation upon which the judgment was recovered, except a discharge from such liability by the statute of limitation.

constitute the

SEC. 372. If the defendant in his answer deny the judgment, or What to set up any defence, which may have arisen subsequently, the sum- pleadings. mons, with the affidavit annexed, and the answer, shall constitute the written allegations in the case: if he deny his liability on the obligation upon which the judgment was recovered, a copy of the original complaint and judgment, the summons, with the affidavit annexed, and the answer, shall constitute such written allegations.

tried.

SEC. 373. The issues formed may be tried as in other cases; but Issues, how when the defendant denies, in his answer, any liability on the obligation upon which the judgment was rendered, if a verdict be found against him, it shall be for the amount remaining unsatisfied on such original judgment, with interest thereon.

CHAPTER II.

CONFESSION OF JUDGMENT WITHOUT ACTION.

be entered by confession.

SECTION 374. A judgment by confession may be entered without Judgment may action, either for money due, or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter.

to contain.

SEC. 375. A statement in writing shall be made, signed by the de- Statement, what fendant, and verified by his oath to the following effect:

1st. It shall authorize the entry of judgment for a specified sum ; 2d. If it be for money due, or to become due, it shall state concisely the facts out of which it arose, and shall show that the sum confessed therefor is justly due, or to become due:

3d. If it be for the purpose of securing the plaintiff against a contingent liability, it shall state concisely the facts constituting the liability, and shall show that the sum confessed therefor does not exceed the same.

be filed.

SEC. 376. The statement shall be filed with the clerk of the county Statement to in which the judgment is to be entered, who shall endorse upon it, and enter in the judgment book a judgment of such court, for the amount confessed, with ten dollars costs. The statement and affidavit, with the judgment endorsed, shall thereupon become the judgment roll.

CHAPTER III.

SUBMITTING A CONTROVERSY WITHOUT ACTION.

SECTION 377. Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which should have jurisdiction, if an action had been brought. But it must appear, by affidavit, that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment thereon, as if an action were depending.

SEC. 378. Judgment shall be entered in the judgment book, as in other cases, but without costs, for any proceeding prior to the trial. The case, the submission, and a copy of the judgment shall constitute the judgment roll.

SEC. 379. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be in the same manner subject to appeal.

Controversy may

be submitted to

CHAPTER IV.

OF ARBITRATIONS.

SECTION. 380. Persons capable of contracting may submit to arbitraarbitration. tion any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or for life. This qualification shall not include questions relating merely to the partition or boundaries of real property.

Submission to be in writing.

Submission may

be made an order of court.

SEC. 381. The submission to arbitration shall be in writing, and may be to one or more persons.

SEC. 382. It may be stipulated in the submission, that it be entered as an order of the county court, or of the district court, for which purpose it shall be filed with the clerk of the county where the parties, or one of them, reside. The clerk shall, thereupon, enter in his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award shall be made. When so entered, the submission shall not be revoked without the consent of both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court, in the same manner as a judgment. If the submission be not made an order of the court, it may be revoked at any time before the award is made.

arbitrators.

SEC. 383. Arbitrators shall have power to appoint a time and Power of place for hearing, to adjourn from time to time, to administer oaths to witnesses, to hear the allegations and evidence of the parties, and to make an award thereon.

tors to meet.

SEC. 384. All the arbitrators shall meet and act together during the All the arbitrainvestigation; but when met, a majority may determine any question. To be sworn. Before acting, they shall be sworn before an officer authorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties, in relation to the matters in controversy, and to make a just award according to their understanding.

made.

SEC. 385. The award shall be in writing, signed by the arbitrators, Award, how or a majority of them, and delivered to the parties. When the submission is made an order of the court, the award shall be filed with the clerk, and a note thereof made in his register. After the expiration of five days from the filing of the award, upon the application of a party, and on filing an affidavit, showing that notice of filing the award has been served on the adverse party or his attorney, at least four days prior to such application, and that no order staying the entry of judgment has been served, the award shall be entered by the clerk in the judgment book, and shall thereupon have the effect of a judgment.

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

1st. That it was procured by corruption or fraud:

2d. 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 :

3d. 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.

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

1st. 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 :

2d. 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:

may modify or correct award.

Appeal from decision.

Action for revoking submission to

arbitration.

Offer of compromise,

thereon.

3d. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded. SEC. 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.

SEC. 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.

SECTION 390. The defendant may, at any time before the trial or and proceedings judgment, serve upon the plaintiff an offer to allow judgment 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 costs, from the time of the offer.

Who may be a witness.

Interest or

religious belief

TITLE XI.

OF WITNESSES, AND OF THE MANNER OF OBTAINING EVIDENCE.

CHAPTER I.

OF WITNESSES.

SECTION 391. All persons, without exception, otherwise than as specified in this chapter, may be witnesses in any action or proceeding.

SEC. 392. No person offered as a witness shall be excluded by reanot to disqualify. son of his interest in the event of the action or proceeding; nor on account of opinions on matters of religious belief.

Last section not to apply to party to action.

SEC. 393. The provision of the last section that no person shall be excluded by reason of his interest in the event of an action or proceeding, shall not apply to a party in such a proceeding, nor to any person for whose immediate benefit it is prosecuted or defended. The examination of such party or person shall be taken as provided in chapter third of this title.

SEC. 394. The following persons shall not be witnesses :

1st. Those who are of unsound mind at the time of their production for examination:

2d. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly; and,

3d. Indians, or persons having one fourth or more of Indian blood, in an action or proceeding to which a white person is a party :

4th. Negroes, or persons having one half or more negro blood, in an action or proceeding to which a white person is a party.

Who may not

be a witness.

wife.

SEC. 395. A husband shall not be a witness for or against his wife, Husband and nor a wife a witness for or against her husband; nor can either, during the marriage, or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage. But this exception shall not apply to an action or proceeding by one against the other.

counsellor.

SEC. 396. An attorney or counsellor shall not, without the con- Attorney or sent of his client, be examined as a witness as [to] any communication made by the client to him, or his advice given thereon, in the course of professional employment.

priest.

SEC. 397. A clergyman or priest shall not, without the consent of Clergyman or the person making the confession, be examined as a witness as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs.

surgeon.

SEC. 398. A licensed physician or surgeon shall not, without the Physician or consent of his patient, be examined as a witness, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient.

SEC. 399. A public officer shall not be examined as a witness as to Public officer. communications made to him in official confidence, when the public

interest would suffer by the disclosure.

SEC. 400. The judge himself, or any juror, may be called as a wit- Judge or juror. ness by either party; but in such case it shall be in the discretion of

the court or judge to order the trial to be postponed or suspended,

and to take place before another judge or jury.

SEC. 401. When a witness does not understand and speak the Eng- Interpreter. lish language, an interpreter shall be sworn to interpret for him.

CHAPTER II.

MANNER OF COMPELLING THE ATTENDANCE OF WITNESSES, AND THEIR

RIGHTS AND DUTIES.

SECTION 402. A subpoena may require not only the personal attend- What a subpoena ance of the person to whom it is directed at a particular time and

may require.