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NOTE. If the subscribing witness is within the jurisdiction of the Court he must be produced, or his absence accounted for, before proof of his handwriting.—Powell's Heirs vs. Hendricks, 3 Cal., p. 427; Stevens vs. Irwin, 12 Cal., p. 307; Jackson vs. Root, 18 Johns., p. 611; Jackson vs. Feather River W. Co., 14 Cal., p. 19; Landers vs. Bolton, 26 Cal., p. 393; see, also, McGarrity vs. Byington, 12 Cal., p. 427; McMinn vs. O'Connor, 27 Cal., p. 239.

witnesses

1941. If the subscribing witness denies or does Other not recollect the execution of the writing, its execu- may also tion may still be proved by other evidence.

testify.

evidence of

not neces

1942. Where, however, evidence is given that When the party against whom the writing is offered has at execution any time admitted its execution no other evidence of sary. the execution need be given, when the instrument is one mentioned in Section 1945, or one produced from the custody of the adverse party, and has been acted upon by him as genuine.

of hand

writing.

1943. The handwriting of a person may be proved Evidence by any one who believes it to be his, and who has seen him write, or has seen writings purporting to be his, upon which he has acted or been charged, and who has thus acquired a knowledge of his handwriting.

comparison

1944. Evidence respecting the handwriting may Allowed by also be given by a comparison, made by the witness or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered.

1945. Where a writing is more than thirty years Same. old, the comparisons may be made with writings purporting to be genuine, and generally respected and acted upon as such, by persons having an interest in knowing the fact.

1946. The entries and other writings of a decedent, made at or near the time of the transaction, and in a position to know the facts stated therein, may be

Entries of evidence in

decedents

specified

cases.

Same.

Copies of entries also allowed.

Private writings acknowl

edged and certified.

County
Clerks

private

papers

deposited.

read as primary evidence of the facts stated therein, in the following cases:

1. When the entry was made against the interest of the person making it;

2. When it was made in a professional capacity and in the ordinary course of professional conduct; 3. When it was made in the performance of a duty specially enjoined by law.

1947. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are equally regarded as originals.

NOTE.-Landis vs. Turner, 14 Cal., p. 573.

1948. Every private writing, except last wills and testaments, may be acknowledged or proved and certified in the manner provided for the acknowledgment or proof of conveyances of real property, and the certificate of such acknowledgment or proof is primary evidence of the execution of the writing, in the same manner as if it were a conveyance of real property.

1949. Every County Recorder must receive and to keep file in his office any private writing delivered to him for that purpose, and give a written receipt therefor. Such writing must be properly indorsed so as to indicate its general nature, the names of the parties thereto, and the time of filing, and must be deposited and kept in such office separate from other papers. It is then subject to the examination of any person, but cannot be withdrawn, except temporarily, upon the written order of the depositor or his legal representatives, or on the order of a Court of record, for the purpose being read in evidence therein.

of

NOTE.-See Secs. 1158-1217, Civil Code Cal., for: 1. What may be recorded. 2. Mode of recording. 3. Proof and acknowledgments of instruments. 4. Effect of recording, or of the want thereof. See Pol. Code, Title "Recorder," Secs. 4234-4246, and notes.

records

carried

1950. The record of a conveyance of real property, Public or other record, a transcript of which is admissible in not to be evidence, must not be removed from the office where about. it is kept, except upon the order of a Court, or when temporarily removed by the Clerk having it in custody to the Court of which he is Clerk, or to Courts held in the city or town where his office is situated.

NOTE.-See note to preceding section.

MATERIAL OBJECTS

CHAPTER IV.

PRESENTED TO THE SENSES, OTHER
THAN WRITINGS.

SECTION 1954. Material objects.

objects.

1954. Whenever an object, cognizable by the Material senses, has such a relation to the fact in dispute as to afford reasonable grounds of belief respecting it, or to make an item in the sum of the evidence, such object may be exhibited to the jury, or its existence, situation, and character may be proved by witnesses. The admission of such evidence must be regulated by the sound discretion of the Court.

CHAPTER V.

INDIRECT EVIDENCE, INFERENCES, AND PRESUMPTIONS.

SECTION 1957. Indirect evidence classified.

1958. Inference defined.

1959. Presumption defined.

1960. When an inference arises.

1961. Presumptions may be controverted, when.
1962. Specification of conclusive presumptions.
1963. All other presumptions may be controverted.

54-VOL. II.

Indirect evidence classided.

Inference deaned.

Presumption defined.

When an inference arises.

Presumptions may be controverted, when.

Specifica

tion of conclusive presump

tions.

1957. Indirect evidence is of two kinds:

1. Inferences; and,

2. Presumptions.

1958. An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect.

1959. A presumption is a deduction which the law expressly directs to be made from particular facts.

1960. An inference must be founded:
1. On a fact legally proved; and,

2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.

1961, A presumption (unless declared by law to be conclusive) may be controverted by other evidence, direct or indirect; but unless so controverted the jury are bound to find according to the presumption.

1962. The following presumptions, and no others, are deemed conclusive:

1. A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another;

2. The truth of the facts recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration;

3. Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it;

4. A tenant is not permitted to deny the title of his Samo, landlord at the time of the commencement of the relation;

5. The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate;

6. The judgment or order of a Court, when declared by this Code to be conclusive; but such judgment or order must be alleged in the pleadings if there be an opportunity to do so; if there be no such opportunity, the judgment or order may be used as evidence;

7. Any other presumption which, by statute, is expressly made conclusive.

NOTE.-See Sec. 1908. 1. Subd. 2.-A party is not allowed to controvert the declaration he has made by deed, or to deny the enforcement of rights which he has thus attempted to confer. This rule is according to well established principles of public policy, and for the security of good faith and fair dealing. For instance, see Tartar vs. Hall, 3 Cal., p. 263; Baker vs. Bartol, 7 Cal., p. 551; Tewksbury vs. Provizzo, 12 Cal., p. 21; Gee vs. Moore, 14 Cal., p. 473; Clark vs. Baker, 14 Cal., p. 613; Dodge vs. Walley, 22 Cal., p. 225; Simson vs. Eckstein, 22 Cal., p. 581; Flandreau vs. Downey, 23 Cal., p. 354; Larco vs. Casaneuava, 30 Cal., p. 561; Rhine vs. Ellen, 36 Cal., p. 363. If a deed, executed by one of the parties to an action and to which the other party is an entire stranger, is used as evidence in that action, its recitals can only be used as simple admissions made by the party by whom it was executed.-See, further, Franklin vs. Dorland, 28 Cal., p. 175. The acceptance of a deed does not, in favor of a stranger-that is, one neither party nor privy to the deed-estop the grantee in fee from showing that the grantor had no title at the date of the deed. Estoppels are mutual and bind both parties or neither, and as a person, neither party nor privy to a deed, is not bound to acknowledge a title under it, so the grantee in the deed is not bound by it in favor of such person.-Schuman vs. Garratt, 16 Cal., p. 101. A party making a deed is not estopped, as between the original parties to it, by recitals unnecessary to the conveyance.-Osborne vs. Endicott, 6 Cal., p. 149. This rule does not apply to the recital of a consideration. The consideration may be proved by

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