SEC. 49. In case above ten estrays belonging to one man are posted at one time, the damages for all above that number shall be one-half of that specified in section forty-three of this act. Gen. Laws, 2654.

SEC. 50. This act shall apply to the county of Napa and take effect and be in force from and after its passage. Gen. Laws, 2655.

SEC. 51. Acts Repealed.-All acts and parts of acts in conflict with the provisions of this act are hereby repealed, so far as they apply to Napa county, except the act entitled an act concerning hogs found running at large in the counties of Colusa, Tehama, Butte, Sonoma and Napa, approved March twenty-sixth, eighteen hundred and fifty-seven. Gen. Laws, 2656.

SUTTER COUNTY.

SEC. 52. The law in regard to estrays in Sutter county, passed March 17th, 1856, is the same as will be found in this chapter from section one to eighteen, inclusive, except section eight, which makes no difference between horses, etc. and neat cattle, and sections eighteen, as to fees. In Sutter county the justice of the peace shall receive for all services connected with the posting of animals, which shall include the transcript for the recorder, two dollars. The county recorder for recording the transcript, one dollar. The justice for all services under this act, other than the above and for all services performed by other officers, the same fees as are allowed as to civil officers in similar cases.

SECTION 1. What is evidence? Evidence is that which makes clear or ascertains the very fact or point at issue (3 Bl. Com. 367), or it is whatever is lawfully exhibited to a court and jury by which any matter of fact, the truth of which is submitted to investigation, is established or disproved. 1 Greenl. Ev. Sec. 1; 1 Phil. Ev. 1.

SEC. 2. This word and the words "proof," "testimony" and "witness," are sometimes used as synonymous terms, but such is improper their meanings are different. By evidence is meant that which establishes the fact or truth of a proposition; proof is the effect of evidence; testimony is simply the statement of a witness under oath, and the witness is he who testifies to matters of fact known by him. 3 Bouv. Inst. 336.

SEC. 3. Evidence is classified, as competent, which means that which the law authorizes and the fact to be proved requires; as credible, or that which may be believed; as incredible, or that which cannot be believed; as satisfactory, or that which induces belief that the thing is true; as cumulative, which goes to prove the thing already proved. Evidence of a circumstance, different from other circumstances, already testified to, but tending to prove the same thing, is not cumulative; as direct, or that which precisely proves the fact in question; or as indirect, which does not prove the fact in question but proves some other fact, the certainty

of which leads to the discovery of the truth of the one sought.

SEC. 4. Certain rules of evidence are laid down to guide magistrates in the discovery of truth. In the establishIment of these rules the law intended to adopt the best means of terminating disputes among men. A strict observance of these rules seldom fails to produce convictions as strong as consciousness; and this strong persuasion is termed "moral certainty,"-a condition of the mind only less satisfactory than demonstration or mathematical certainty.

SEC. 5. It is absolutely necessary that every magistrate should enforce the laws of evidence in the investigation of every fact material to issues presented in his court. The rules which govern the production and admission of testimony may be found under this title, and will be considered as to the nature, its objects, the instruments by which facts are established and its effect.

SEC. 6. In considering the nature of evidence, we first present that which is primary, or the best of which the case in its nature is susceptible. For example: When a written contract has been entered into, and the object is to prove what it was, the writing itself is primary or the best which can be produced.

SEC. 7. Secondary proof can only be employed or admitted when the primary is lost or destroyed. In that event it becomes the best evidence attainable. It is a rule, that before secondary evidence is admissible, it must be made to appear that the primary cannot be obtained. It often happens, however, that the primary evidence, although not lost or destroyed, cannot be produced in court: such are inscriptions on walls, fixed tables, mural monuments, grave-stones and the like. These, from their nature, cannot be produced in court; secondary evidence must, therefore, be admitted concerning them. Certain records, such as judicial records, registered books and the like, may be proved by authenticated copies. These lastmentioned are made evidence by special law. 2 Stark. 274. SEC. 8. Positive evidence, is that which, if believed, establishes the truth or falsehood of a fact in issue, and

does not arise from any presumption. Evidence is positive when the facts in dispute are communicated by those who have the actual knowledge of them by means of their senses. 1 Phil. Ev. 116.

SEC. 9. Circumstantial or presumptive evidence, is the proof of collateral facts, and differs from positive proof in this, that it never proves directly the fact in question. There is a difference between presumptuous and circumstantial evidence. Circumstantial evidence is the means employed to come to the knowledge of one or more facts in order to establish the existence of another; a presumption is an inference as to the existence of one fact from the existence of some other fact, founded on a previous experience of their connection. 1 Phil. Ev. 116.

SEC. 10. To constitute such a presumption, a previous experience of the connection between the known and inferred facts is essential. This connection must be of such a nature that, as soon as the evidence of one is established, admitted or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning upon the subject. Presumptions are either legal and. artificial or natural. 3 Bouv. Inst. 345.

SEC. 11. Legal presumptions consist of those rules which in certain cases either forbid or dispense with any further inquiry, and are conclusive or which cannot be disputed, and inconclusive or which can be disputed.

SEC. 12. A conclusive presumption, is one which the law will not permit to be overcome by any form of proof. The law, for instance, assumes that an infant under the age of twenty-one years is defective in judgment and, therefore, cannot bind himself by a contract against his interest. Now, in defending an infant in a suit to enforce such contract, it will only be necessary to prove he was an infant under the age of twenty-one years when he made the contract, and the law, without further proof, presumes his incapacity to contract, and will not permit proof to remove the presumption. 3 Bouv. Inst. 348.

SEC. 13. Inconclusive presumptions may be overcome by opposing proof. These, like those above considered, are the result of general experience that there is a connec

tion between certain facts and things, the one being the companion of the other. For instance: The law presumes that a person in the possession of personal property is the owner of it; still it is a presumption which may be contradicted by proof. 3 Bouv. Inst. 349.

SEC. 14. Natural presumptions differ from mere presumptions of law in this essential respect, that the latter depend upon and are a branch of the particular system of jurisprudence to which they belong; but mere natural presumptions are derived wholly by means of the common experience of mankind, without the aid or control of any particular rule of law, but simply from the course of nature and the habits of society.

SEC. 15. Hearsay evidence, is that kind of knowledge which the witness states he has received or heard from others, and relates to what is written as well as to what is spoken. 1 Greenl. Sec. 100.

[The following statutes and decisions of the supreme court of this state, will furnish to justices of the peace a sufficient guide to direct them in matters of testimony :]

Subpenas, and Service of.

SEC. 16. Justices may issue subpenas in any action or proceeding in the courts held by them to any part of the county. Gen. Laws, 5550.

SEC. 17. The provisions of title eleven of this act, so far as the same are consistent with the jurisdiction and powers of justices' courts, shall be applicable to justices' courts, and to actions and proceedings therein. Gen. Laws, 5551.

SEC. 18. A subpena may require not only the attendance of the person to whom it is directed, at a particular time and place, to testify as a witness, but may also require him to bring any books, documents or other things, in his con: trol, to be used as evidence. No person shall be required to attend as a witness before any court, judge, justice or any other officer, out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial. The subpena shall be issued as follows:

1st. To require attendance before a court or at the trial of an issue therein, it shall be issued in the name and under