$1861. The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a local, technical or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.

N. Y. C. C. P. § 1694; Or. C. C. P. § 687.

34 Cal. 624.

§ 1862.

When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter.

N. Y. C. C. P. § 1695; Or. C. C. P. § 688.

§ 1863. When the characters in which an instrument is written are difficult to be deciphered, or the language of the instrament is not understood by the coart, the evidence of persons skilled in deciphering the characters or who understand the language, is admissible to declare the characters or the meaning of the language.

N. Y. C. C. P. $ 1696; Or. C. C. P. § 689.

§ 1864. When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.

N. Y. C. C. P. § 1697; Or. C. C. P. § 690.

1865. A written notice, as well as every other writing, is to be constructed according to the ordinary acceptation of ite terms. Thus, a notice to the drawers or indorsers of a bill of exchange or promissory note, that it has been protested for want of acceptance or payment, must be held to import that the same has been duly presented for acceptance or payment and the same refused, and that the holder looks for payment to the person to whom the notice is given.

N. Y. C. C. P. § 1698; Or. C. C. P. § 691.

4 Cal. 213; 8 Cal. 626; 14 Cal. 160; 24 Cal. 379.

Ø 1866. When a statute or instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted.

N. Y. C. C. P. $ 1699; Or. C. C. P. § 692.

Ø 1867.

None but a material allegation need be proved.

N. Y. C. C. P. § 1701; Or. C. C. P. $ 693.

Vide § 471.

Ø 1863. Evidence must correspond with the substance of the material allegations and be relevant to the question in dispute. Collateral questions must therefore be avoided. It is, however, within the discretion of the court to permit inquiry into a collateral fact, when such fact is directly connected with the question in dispute, and is essential to its proper determination, or when it affects the credibility of a witness.

N. Y. C. C. P. § 1702; Or. C. C. P. § 694.

Ø 1869. Each party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the statement of the right or title on which the cause of action or defense is founded, nor even in such case when the allegation is a denial of the existence of a document, the custody of which belongs to the opposite party.

N. Y. C. C. P. § 1703; Or. C. C. P. § 695.

Ø 1870.

In conformity with the preceding provisions, evidence may be given upon a trial of the following facts:

1. The precise fact in dispute.

2. The act, declaration or omission of a party, as evidence against such party.

3. An act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto.

4. The act or declaration, verbal or written, of a deceased person in respect to the relationship, birth, marriage or death of any person related by blood or marriage to such deceased person; the act or declaration of a deceased person done or made against his interest in respect to his real property; and also in criminal

actions, the act or declaration of a dying person, made under a seuse of impending death, respecting the cause of his death.

5. After proof of a partnership or agency, the act or declaration of a partner or agent of the party, within the scope of the partnership or agency, and during its existence. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.

6. After proof of a conspiracy, the act or declaration of a conspirator against his co-conspirator, and relating to the conspiracy. 7. The act, declaration or omission forming part of a transaction, as explained in section eighteen hundred and fifty.

8. The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the same matter.

9. The opinion of a witness respecting the identity or handwriting of a person, when he has knowledge of the person or handwriting; his opinion on a question of science, art or trade, when he is skilled therein.

10. The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate acquaintance resyecting the mental sanity of a person, the reason for the opinion being given.

11. Common reputation existing previous to the controversy, respecting facts of a public or general interest more than thirty years old, and in cases of pedigree and boundary.

12. Usage, to explain the true character of an act, contract or instrument, where such true character is not otherwise plain; but usage is never admissible, except as an instrument of interpretation.

13. Monuments and inscriptions in public places, as evidence of common reputation; and entries in family bibles, or other family books or charts; engravings on rings, family portraits and the like, as evidence of pedigree.

14. The contents of a writing, when oral evidence thereof is admissible.

15. Any other facts from which the facts in issue are presumed or are logically inferable.

C. C. P.-51

16. Such facts as serve to show the credibility of a witness, as explained in section eighteen hundred and forty-seven.

N. Y. C. C. P. $1704; Or. C. C. P. § 696.

Subdivision 2.-3 Cal. 396; 5 Cal. 79; 9 Cal. 593; 22 Cal. 232; 23 Cal. 347; 26 Cal. 23; 34 Cal. 178; 35 Cal. 25, 373, 684; 38 Cal. 51; 39 Cal. 224. Vide S 2061, subdiv. 4. Estoppels. Vide $ 1962.

Subdivision 3.-22 Cal. 231; 29 Cal. 637.

Subdivision 4.-Dying declarations, 10 Cal. 32; 17 Cal. 76, 166; 21 Cal. 368; 24 Cal. 17, 640; 35 Cal. 49.

Subdivision 5.-1 Cal. 221, 459; 9 Cal. 251; 14 Cal. 35; 23 Cal. 101, 152, 468; 36 Cal. 571; 39 Cal. 75; 40 Cal. 396.

Subdivision 8.-15 Cal. 275; 16 Cal. 423.

Subdivision 9.-Experts, 6 Cal. 108; 9 Cal. 56; 17 Cal. 416; 31 Cal. 115;

OTHER THAN WRITINGS.

V. INDIRECT EVIDENCE.

VI. INDISPENSABLE EVIDENCE.

VII. CONCLUSIVE AND UNANSWERABLE EVIDENCE.

CHAPTER I.

KNOWLEDGE OF THE COURT.

SECTION 1875. Certain facts of general notoriety assumed to be true. Specification of such facts.

Ó 1875.

Courts take judicial notice of the following facts: 1. The true signification of all English words and phrases, and of all legal expressions.

2. Whatever is established by law.

3. Public and private official acts of the legislative, executive and judicial departments of this state and of the United States. 4. The seals of all the courts of this state and of the United States.

5. The accession to office and the official signatures and seals of office of the principal officers of government in the legis lative, executive and judicial departments of this state and of the United States.