The intention of the or parties. 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. 1859. In the construction of a statute the intenLegislature tion 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. The circumstances considered. to be Terms to be construed in their general 1860. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instru ment, 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. 1861. The terms of a writing are presumed to have been used in their primary and general acceptaacceptation tion, 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. Written words control 1862. When an instrument consists partly of written words and partly of a printed form, and the two printed in a are inconsistent, the former controls the latter. those blank form. Persons skilled may testify to decipher 1863. When the characters in which an instrument is written are difficult to be deciphered, or the characters. language of the instrument is not understood by the Court, 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. 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. of two con structions, which preferred. instrument as under stood by parties. 1865. A written notice, as well as every other A written writing, is to be construed according to the ordinary construed acceptation of its 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. Construc tion in natural 1866. When a statute or instrument is equally susceptible of two interpretations, one in favor of favor of natural right, and the other against it, the former is right, to be adopted. 1867. None but a material allegation need be proved. 1868. 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. preferred. Material allegation only to be proved. Evidence to material confined allegation. only to be 1869. Each party must prove his own affirmative Affirmative allegations. Evidence need not be given in support of proved. Facts which may be proved on trial. 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 cus tody of which belongs to the opposite party. 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 sense 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 1850; 8. The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former Same. 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 respecting 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; 16. Such facts as serve to show the credibility of a witness, as explained in Section 1847. TITLE II. OF THE KINDS AND DEGREES OF EVIDENCE. CHAPTER I. Knowledge of the Court. II. Witnesses. III. Writings. IV. Material objects presented to the senses, other than writings. V. Indirect evidence. VI. Indispensable evidence. VII. Conclusive and unanswerable evidence. Certain facts of general notoriety assumed to be true. Specification of such facts. CHAPTER I. KNOWLEDGE OF THE COURT. SECTION 1875. Certain facts of general notoriety assumed to be true. 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 legislative, executive, and judicial departments of this State and of the United States; 6. The existence, title, national flag, and seal of every State or sovereign recognized by the executive power of the United States; " |