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conversation or writing, which is necessary to make it understood, may also be given in evidence.

§ 1688. 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 is in the possession of the party against whom the evidence is offered, and he withholds it under the circumstances mentioned in section 1758:

2. When the original cannot be produced, by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default:

3. When the original is a record, or other document, in the custody of a public officer:

4. When the original is a record or other document, of which a certified copy is expressly made evidence by this code, or some other statute of this state:

5. When the originals consist of numerous accounts, or other documents, which cannot be examined in 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 3 and 4, a copy of the original must be produced; in those mentioned in subdivisions 1 and 2, either a copy or oral evidence of the contents.

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§ 1689. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives, or successors in interest, no 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 1693, or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud. The term agreement includes deeds and wills, as well as contracts between parties.

§ 1690. 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.

§ 1691. 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.

§ 1692. In the construction of a statute, the intention of the legislature, and in the construction of an 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.

§ 1693. 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.

§ 1694. 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.

§ 1695. When an instrument consists partly of written words, and partly of a printed form, and the two are inconsistent, the former controls the latter.

§ 1696. When the characters, in which an instrument is written, are difficult to be decyphered, or the language of the instrument is not understood by the court, the evidence of persons skilled in decyphering the characters, or who understand the language, is admissible to

declare the characters, or the meaning of the lan

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§ 1697. 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.

The first part of this section expresses a rule of ethics, which should find a place in these rules of construction. "When the terms of promise admit of more senses than one, the promise is to be performed, in that sense in which the promisor apprehended at the time, that the promisee received it." It is not the sense in which the promisor actually intended it, that always governs the interpretation of an equivocal promise; because at that rate you might excite expectations, which you never meant, nor would be obliged, to gratify. Much less is it the sense, in which the promisee actually received the promise; for, according to that rule, you might be drawn into engagements, which you never designed to make. It must therefore be the sense, (for there is no other remaining,) in which the promisor believed the promisee accepted his promise.

"This will not differ from the actual intention of the promisor, when the promise is given without collusion or reserve; but we put the rule in the close form, to exclude evasion in cases, in which the popular meaning of a phrase, and the strict grammatical construction of the words, differ; or in general wherever the promisor attempts to make his escape through some ambiguity in the expressions which he used.

"Temures promised the garrison of Sebastia, that if they would surrender, no blood should be shed. The garrison surrendered, and Temures buried them all alive. Now Temures fulfilled the promise in one sense, and in the same too in

which he intended it at the time; but not in the sense in which the garrison of Sebastia actually received it, nor in the sense in which Temures himself knew that the garrison received it; which last sense, according to our rule, was the sense in which he was in conscience bound to have performed it."

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"From the principle established in the last chapter, that the obligation of a promisor is to be measured by the expectation, which the promisor any how voluntarily and knowingly excites, results a rule, which governs the construction of all contracts, and is capable from its simplicity, of being applied with great care and certainty, viz: that whatever is expected by one side, and known to be so expected by the other, is to be deemed a part or condition of the contract."-Paley's Moral Philosophy, pp. 85, 97.

§ 1698. 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.

§ 1699. Where 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.

§ 1701. None but a material allegation need be proved.

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