tion of a writ

First. Where a mistake or imperfection of the writing is put in issue by the pleadings.

Second. 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 614; or to explain an extrinsic ambiguity, or to establish illegality or fraud. The term agreement includes deeds and wills, as well as contracts between parties.

SEC. 611. The language of a writing is to be interInterpreta preted according to the meaning it bears in the place of its execution, unless the parties have reference to a different place.

ing.

Office of the

judge in conute or instru

struing a stat

ment.

The intention

SEC. 612. 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.

SEC. 613. 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, of the legisla 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.

ture and of

parties to be pursued, if possible.

Circumstan

ces under

which an in

strument was executed may

shown.

be

tions in con

SEC. 614. 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.

SEC. 615. The terms of a writing are presumed to Presump 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

struction of a

writing.

were so used and understood in the particular instance, in which case the agreement must be construed accordingly.

SEC. 616. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter.

When experts

testify.

A to the inparties to an

tentions of

agreement.

SEC. 617. When the characters in which an instrument is written are difficult to be deciphered, or the language of the instrument is not understood by the court, the evidence of persons skilled in deciphering the admitted to characters, or who understand the language, is admissible to declare the characters or the meaning of the language. SEC. 618. 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. SEC. 619. A written notice, as well as every other writing, is to be construed according to the ordinary acceptation of its terms. Thus, a notice to the drawers or endorsers 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.

A writing is

to be con

strued ac

cording to the

ordinary acits terms.

ceptation of

Construction ute is suscepinterpreta

where a stat

tible of two

tions.

SEC. 620. 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. SEC. 621. None but a material allegation need be What need be proved.

SEC. 622. 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

proved.

Evidence pond with

must corres

pleadings.

eral facts

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.

SEC. 623. Each party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when such negative alleWhen collat- gation is an essential part of the statement of the right or title on which the cause of action or defense is founded; not 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.

may be inquired into.

Proof each

SEC. 624. In conformity with the preceding provisparty must ions, evidence may be given upon a trial of the following facts:

make.

Facts

that

First. The precise fact in dispute.

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

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

Fourth. 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 evidence 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.

may be given to prove.

Fifth. 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.

Sixth. After proof of a conspiracy, the act or declaration of a conspirator against his co-conspirator, and relating to the conspiracy.

Seventh. The act, declaration, or omission forming part of a transaction as explained in section 604.

Eighth. 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.

Ninth. 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.

Tenth. 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 of the opinion being given.

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

Twelfth. 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.

Thirteenth. 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.

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

Fifteenth. Any facts from which the facts in issue are presumed, or are logically inferable.

Sixteenth. Such facts as served to show the credibility of a witness, as explained in section 601.

SEC. 625. Courts take judicial notice of the following facts:

Facts of which courts take judicial

First. The true signification of all English words notice. and phrases, and all legal expressions.

witnesses.

Second.

Whatever is established by law.

Third. Public and private official acts of the legislative, executive, and judicial departments of this territory, and of the United States.

Fourth. The seals of all the courts of this territory, and of the United States.

Fifth. 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 territory and the United States.

Sixth. The existence, title, national flag, and seal of every state or sovereign recognized by the executive power of the United States.

Seventh. The seals of courts of admiralty and maritime jurisdiction, and of notaries public.

Eighth. The laws of nature, the measure of time, and the geographical divisions and political history of the world.

In all these cases the court may resort, for its aid, to appropriate books or documents of reference.

CHAPTER II.- Witnesses.

SEC. 626. All persons, without exception otherwise than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. Who may be Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded, nor those who have been convicted of crime, nor persons on account of their opinions on matters of religious belief; although in every case the credibility of the witnesses may be drawn in question, as provided in section 601.

which per

sons are not

SEC. 627. No person shall be allowed to testify, unCases in der provision of the last section, where the adverse party, or the party for whose immediate benefit the action or the last sec proceeding is prosecuted or defended, is the representative of a deceased person, when the facts to be proved

allowed to testify under

tion.