Oct. 11, 1862, 775. Agreement not in writing, when void. Oct. 11, 1862, 776. Evidence of representations as to 7. An agreement concerning real property, made by an agent of the party sought to be charged, unless the authority of the agent be in writing. Statute of frauds generally."Subscribed" implies that the name is to be placed at the foot of the memorandum: Merritt v. Clasen, 12 Johns. 102; S. C., 7 Am. Dec. 286; Commonwealth v. Ray, 3 Gray, 447; Lerned v. Wannemache, 9 Allen, 412; Boardman v. Spooner, 13 Id. 353. Only the party to be charged need subscribe the memorandum: Rutenberg v. Main, 47 Cal. 213; Ballard v. Walker, 3 Johns. Cas. 60; Roget v. Merrit, 2 Caines, 117; Justice v. Lang, 42 N. Y. 493; Estes v. Furlong, 51 Ill. 302; Barnard v. Lee, 97 Mass. 92; but the names of all the parties must be stated therein: Williams v. Lake, 2 El. & E. 349. The subscribing may be done by the party's attorney on verbal authority, except in the instance expressly provided for in subd. 7: Rutenberg v. Main, 47 Cal. 213. What the memorandum should contain is laid down in Joseph v. Holt, 37 Id. 250. All that is required is a note or memorandum signed by the party to be charged, containing the names of the parties, and a summary of the terms expressly or by refer ence to something else; the memorandum may be less specific than the contract itself: Id. The substance, but not the terms, of the contract should be set out: Ives v. Hazard, 4 R. I. 14. Where the parties must have expected that a contract would not be performed within a year, and yet by its terms it might have been so performed, it is not within the statute of frauds: Southwell v. Breezley, 5 Or. 458. It must appear that the contract is incapable of performance within the year: Hedges v. Strong, 3 Id. 18. See subdivision 6 followed in Corbitt v. Salem Gas Light Co., 6 Or. 405. For a general discussion of the provisions of the statute of frauds, see Brown on Statute of Frauds. The space here will not admit of a full discussion of this topic. is admissible to charge a § 786. [776.] No evidence person upon a representation as to the credit, skill, or character of a third person, unless such representation, third persons. Or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party to be charged. CHAPTER IX. OF THE PRODUCTION AND EFFECT OF EVI- TITLE I.-BY WHOм EVIDENCE TO BE PRODUCED. II. OF THE MEANS OF THE PRODUCTION OF EVIDENCE. III. OF THE MODE OF TAKING THE TESTIMONY IV. OF AFFIDAVITS. V. OF DEPOSITIONS. OF THE MANNER OF TAKING DEPOSITIONS VII. OF THE MANNER OF TAKING DEPOSITIONS VIII. OF GENERAL RULES OF EXAMINATION. IX. OF THE EFFECT OF EVIDENCE. - X.-OF THE RIGHTS AND DUTIES OF WIT NESSES. TITLE I. BY WHOM EVIDENCE TO BE PRODUCED. § 787. Evidence to be produced by party having the affirmative. § 777. § 787. [777.] The party having the affirmative of the oct. 11, 1862, issue shall produce the evidence to prove it. Therefore the burden of proof lies on the party who would be de- produced by feated if no evidence were given on either side. See § 705 [695]. Burden of proof. - One having the burden of proof is not relieved therefrom by the opposing party's anticipating his case with negative averments: Lane v. Pferdner, 56 Cal. Evidence to be party having the affirmative of issue. § 788. [778.] The party producing a writing as genu- Id., §778. ine which has been altered, or appears to have been Alteration in altered, after its execution or making, in a part material to explain. writing, who Oct. 11, 1862, §778. What explana- to the question in dispute, shall account for the appearance or alteration. He may show that the alteration was made by another without his concurrence, or was made. with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration. did not change the meaning or language of the instru ment. If he do that, he may give the writing in evidence, but not otherwise. Parol evidence admissible to explain alterations: Wren v. Fargo, 2 Or. 17; Wills v. Wilson, 3 Id. 308. § 789. [779.] The process by which the attendance of a witness is required is a subpoena. It is a writ directed to a person, and requiring his attendance, at a particular time and place, to testify as a witness in a particular action, suit, or proceeding therein specified, on behalf of a particular party therein mentioned. It may also require him to bring with him any books, documents, or other things under his control which he is bound by law to produce in evidence. § 790. [780.] The subpoena is issued as follows:1. To require attendance before a court of record, or at the trial of an issue therein, or out of such court in an action, suit, or proceeding pending therein, by the clerk of such court; 780. 2. To require attendance before a commissioner ap- Oct. 11, 1862, pointed to take testimony, by a court of the United States, or a territory thereof, a sister state, or any for- and by whom eign country, by any clerk of a court of record, in places within the jurisdiction of such court; 3. To require attendance before the judge, justice of the peace, or other person authorized by law to take the testimony or affidavit of another, by such judge, justice of the peace, or other person, in the places within their respective jurisdiction. Subpoena, how issued. $ 781. Subpoena, when and to in blank. whom issued § 791. [781.] The subpoenas authorized by subdivis- Oct. 11, 1862, ions 1 and 2 of the last section, upon the request of a party or an attorney of the court, shall be issued by the clerk in blank, and delivered to such party or attorney, who may thereafter fill up such blank with the name of the witness or witnesses that he may desire to be subpœnaed, and cause the same to be served as in this title. required. 782. served. § 792. [782.] A subpoena may be served by the party oct. 11, 1862, or any other person over eighteen years of age. The service is made by reading and showing the original, and Subpoena, how delivering a copy or ticket containing its substance to the witness personally, giving or offering to him at the same time the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. Such service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. $783. How served § 793. [783.] A sheriff, his deputy, or some person Oct. 11, 1862, specially appointed by him, but none other, is authorized and required to break into any building or vessel in if witness which a witness may be concealed, so as to prevent the service of a subpoena, and serve the same upon such wit ness. concealed. $784. § 794. [784.] Proof of service of a subpoena shall be Oct. 11, 1862, made in the same manner as in the service of a summons. Proof of service of summons: See ante, § 54 [53], p. 175. Proof of service of subpœna. Oct. 11, 1862, $785. Where witness obliged to attend. 17 Or. 587. Oct. 11, 1862, 786. Person present compelled to testify. Oct. 11, 1862, Disobedience to subpoena. Oct. 11, 1862, $788. Forfeiture for § 795. [785.] A witness is not obliged to attend for oral examination or otherwise at a place outside of the county in which he resides, or in which he may be served with a subpoena, unless his residence be within twenty miles of such place; except that, in an action, suit, or proceeding pending in a court of record, the court or judge thereof, upon the affidavit of the party, or some one on his behalf, showing that the testimony of the witness is material, and his oral examination important and desirable, may indorse upon the subpoena an order for the attendance of the witness; the service of such subpœna and order, and the payment of double fees to the witness, are sufficient to require his attendance, if he be served within the state, in the same manner as if he resided in the county. This section allowing double to criminal cases: Sargent v. Umatilla mileage to witnesses does not apply Co., 13 Or. 443. § 796. [786.] A person present in court or before a judicial officer may be required to testify in the same manner as if he were in attendance before such court or officer on a subpœna. § 797. [787.] 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 before whom he is. required to attend or the refusal takes place, and if the witness be a party, his complaint, answer, or reply may be stricken out. Disobedience of subpoena or refusal to be sworn is contempt: See ante, § 650 [640], subd. 10. § 798. [788.] A witness disobeying a subpoena duly served shall also forfeit to the party requiring his attenddisobedience. ance the sum of fifty dollars and all damages which he may sustain by the failure of the witness to attend; which forfeiture and damages may be recovered by an action at law. Id., 789. § 799. [789.] In case of the failure of a witness to When warrant attend, the court or officer before whom he is required bring witness. to attend, upon proof of the due service of the subpœna may issue to |