TITLE I. OF THE GENERAL PRINCIPLES OF EVIDENCE. SECTION 1844. One witness sufficient to prove a fact. 1845. Testimony confined to personal knowledge. 1816. Testimony to be in presence of persons affected. 1852 Declaration of decedent evidence of pedigree. 1853. Declaration of decedent evidence against his successor in interest. 1854. When part of a transaction proved, the whole is admissible. 1855. Contents of writing, how proved. 1856. An agreement reduced to writing deemed the whole. 1857. Construction of language relates to place where used. 1858. Construction of statutes and instruments, general rule. 1859. The intention of the legislature or parties. 1860. The circumstances to be considered. 1861. Terms to be construed in their general acceptation. 1862. Written words control those printed in a blank form. 1863. Persons skilled may testify to decipher characters. 1864. Of two constructions, which preferred. 1865. A written instrument construed as understood by parties. 1866. Construction in favor of natural right preferred. 1867. Material allegation only to be proved. 1868. Evidence confined to material allegation. 1869. Affirmative only to be proved. 1870. 6 1844. Facts which may be proved on trial. The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason. N. Y. C. C. P. § 1677; Or. C. C. P. § 671. 1845. A witness can testify of those facts only which he knows of his own knowledge; that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferences, or the declaratious of others are admissible. N. Y. C. C. P. § 1678; Or. C. C. P. § 672. Ø 1846. A witness can be heard only upon oath or affirmation, and upon a trial he can be heard only in the presence and subject to the examination of all the parties, if they choose to attend and examine. N. Y. C. C. P. § 1679. 1847. A witness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive judges of his credibility. N. Y. C. C. P. § 1680; Or. C. C. P. § 673. Vide S$ 1879-2051. Stat. 1867-8, 193-4, § 1, read: "In any civil or criminal action or proceeding, a witness may be discredited or impeached, and for such purpose, his general character for truth, honesty and integrity may be inquired into." Vide 8 2051, 2052. 1848. The rights of the party cannot be prejudiced by the declaration, act or omission of another, except by virtue of a particular relation between them; therefore, proceedings against one cannot affect another. N. Y. C. C. P. § 1681; Or. C. C. P. § 674. 2 Cal. 145; 9 Cal. 251; 23 Cal. 101; 40 Cal. 396. 1849. Where, however, one derives title to real property from another, the declaration, act or omission of the latter, while holding the title, in relation to the property, is evidence against the former. N. Y. C. C. P. § 1682; Or. C. C. P. § 675. 5 Cal. 84; 8 Cal. 109, 325; 15 Cal. 50; 23 Cal. 331; 36 Cal. 205; 38 Cal. 51, 279; 40 Cal. 474. 1850. Where, also, the declaration, act or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act or omission is evidence, as part of the transaction. N. Y. C. C. P. § 1683; Or. C. C. P. § 676. 27 Cal. 572; 29 Cal. 637; 35 Cal. 49, 274, 373. Ø 1851. And where the question in dispute between the parties is the obligation or duty of a third person, whatever would be evidence for or against such person is primary evidence between the parties. N. Y. C. C. P. § 1684; Or. C. C. P. § 677. § 1852. The declaration, act or omission of a member of a family, who is a decedent, or out of the jurisdiction, is also admissible as evidence of common reputation, in cases where, on questions of pedigree, such reputation is admissible. N. Y. C. C. P. § 1685; Or. C. C. P. § 678. § 1853. The declaration, act or omission of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest. N. Y. C. C. P. § 1686; Or. C. C. P. § 679. 1854. When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation or writing, which is necessary to make it understood, may also be given in evidence. N. Y. C. C. P. § 1687; Or. C. C. P. $ 680. 9 Cal. 529; 29 Cal. 637; 38 Cal. 279. Ø 1855. (§ 447.) There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases: 1. When the original has been lost or destroyed; in which case proof of the loss or destruction must first be made. 2. When the original is in the possession of the party against whom the evidence is offered, and he fails to produce it after reasonable notice. 3. When the original is a record or other document in the custody of a public officer. 4. When the original has been recorded, and a certified copy of the record is made evidence by this code or by statute. 5. When the original consists of numerous accounts or other documents, which cannot be examined in the court without great loss of time, and the evidence sought from them is only the general result of the whole. In the cases mentioned in subdivisions three and four, a copy of the original must be produced; in those mentioned in subdivisions one and two, either a copy or oral evidence of the contents. See N. Y. C. C. P. § 1688; and Or. C. C. P. § 681. Subdivision 1.-5 Cal. 467; 6 Cal. 460; 9 Cal. 430; 10 Cal. 126; 12 Cal. 11. 104; 15 Cal. 63, 183; 17 Cal. 559; 18 Cal. 165; 19 Cal. 640; 22 Cal. 51; 30 Cal. 380. Vide $1937. Subdivision 2.-9 Cal. 593; 12 Cal. 403; 15 Cal. 63. Vide § 1000. Subdivision 3.-7 Cal. 288. Subdivision 4.-3 Cal. 427; 6 Cal. 488, 579; 12 Cal. 306; 13 Cal. 638; 25 Cal. 122; 27 Cal. 50, 238; 38 Cal. 216, 442. Ø 1856. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as contain. ing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, nc evidence of the terms of the agreement other than the contents of the writing, except in the following cases: 1. Where a mistake or imperfection of the writing is put in issue by the pleadings. 2. Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in section eighteen hundred and sixty, or tc explain an extrinsic ambiguity, or to establish illegality or fraud. The term agreement includes deeds and wills, as well as con tracts between parties. N. Y. C. C. P. & 1689; Or. C. C. P. § 682. 2 Cal. 37: 4 Cal. 355; 7 Cal. 282; 12 Cal. 168; 13 Cal. 116; 15 Cal. 44; 19 Cal. 354; 24 Cal. 411; 35 Cal. 336; 39 Cal. 169. Mortgage. Pierce v. Robinson, 13 Cal. 116: 15 Cal. 287; 20 Cal. 126; 24 Cal. 385; 27 Cal. 603; 29 Cal. 18; 36 Cal. 28; 37 Cal. 452. New Contract, 16 Cal. 138. Consideration. Vide § 1962, 2. Subdivision 1.-21 Cal. 122; 23 Cal. 121, 249; 29 Cal. 150. $1857. The language of a writing is to be interpreted according to the meaning it bears in the place of its execution, unless the parties have reference to a different place. N. Y. C. C. P. § 1690; Or. C. C. P. § 683. 1858. In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. N. Y. C. C. P. § 1691; Or. C. C. P. § 684. 1 Cal. 162, 200; 5 Cal. 169; 6 Cal. 47; 22 Cal. 11; 24 Cal. 518; 26 Cal. 135; 28 Cal. 142: 31 Cal. 240, 412; 32 Cal. 499; 34 Cal. 183. § 1859. In the construction of a statute, the intention of the legislature, and in the construction of the instrument, the intention of the parties is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one, that is inconsistent with it. N. Y. C. C. P. § 1692; Or. C. C. P. § 685. 10 Cal. 589; 11 Cal. 329; 15 Cal. 294; 22 Cal. 11; 30 Cal. 325; 32 Cal. 376; 34 Cal. 331; 36 Cal. 75, 595; 38 Cal. 572. § 1860. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret. N. Y. C. C. P. § 1693; Or. C. C. P. § 686. 10 Cal. 95, 589; 11 Cal. 194; 12 Cal. 148; 13 Cal. 116; 15 Cal. 21; 18 Cal. 137: 22 Cal. 150, 496; 23 Ca. 339: 25 Cal. 440; 29 Cal. 299; 32 Cal. 11; 33 Cal. 202; 31 Cal. 334, 6:4; 36 Cal. 606; 38 Cal. 482. Description of real property. Vide § 2077. |