correctly reflect the content of the asserted writings, is irrelevant and inadmissible upon the question of admissibility of the secondary evidence but is relevant and admissible upon the issues of the existence and content of the asserted writing to be determined by the trier of fact.

§ 2995. Proof of attested writings

When the execution of an attested writing is in issue, whether or not attestation is a statutory requisite of its effective execution, no attester is a necessary witness even though all attesters are available unless the statute requiring attestation specifically provides otherwise. § 2996. Photographic copies to prove content of business and public records

The content of an admissible writing made in the regular course of "a business" as defined by section 2961 of this title, or in the regular course of business or activity of department or agency of government, may be proved by a photostatic, microfilm, microcard, miniature photographic or other photographic copy or reproduction or by an enlargement thereof, when duly authenticated, if it was in the regular course of the business or official activity to make and preserve such copies or reproductions as a part of the records of the business or office. The introduction of the copy, reproduction or enlargement does not preclude admission of the original writing if it is still in existence.

CHAPTER 111-ADMISSIBILITY AND SUFFICIENCY OF

EVIDENCE

SUBCHAPTER I-GENERAL PROVISIONS

Sec.

3051. Degree of certainty required to establish facts.

3052. Number of witnesses to prove fact.

3053. Effect of declarations and acts of one person on rights of another.

3054. Part of transaction proved; admissibility of whole.

3055. Parol evidence rule; agreements reduced to writing.

3056. Construction of writings; place of execution.

3057. Construction of statutes or instruments; duty of judge.

3058. Same; intent; general and particular provisions.

3059. Construction of instruments; circumstances.

3060. Terms of writing; general acceptation; local or technical meaning.

3061. Written words on printed form.

3062. Expert testimony in interpretation of instruments.

3063. Preference between two constructions of agreement.

3064. Notice or writing construed according to ordinary acceptation; notice of protest of bill or note.

3065. Construction of statutes or instruments in favor of natural right.

3066. Usage, evidence as to.

3067. Burden of proof.

3068. Proof of affirmative and negative allegations.

3069. Proof of material allegations; relevant evidence.

3070. Effect of evidence; instructions to jury.

3071. Questions of fact and law.

SUBCHAPTER II-WRITINGS GENERALLY

3101. Kinds of writings.

3102. Public writings defined.

3103. Private writings defined.

3104. Explanation of altered writings.

Sec.

SUBCHAPTER III—PUBLIC WRITINGS

3121. Classification of public writings. 3122. Written laws defined.

3123. Public and private statutes defined. 3124. Unwritten law defined.

3125. Public writing of state or country. 3126. Recitals in statutes as evidence.

3127. Judicial record defined.

3128. Authentication of judicial record. 3129. Judicial record of foreign country. 3130. Same; compared copy.

3131. Proof of official documents.

3132. Public record of private writing.

3133. Officer's deed as evidence of transfer.

SUBCHAPTER IV-PRIVATE WRITINGS

3161. Private writings classified; seals. 3162. Execution of instrument defined. 3163. Compromise of debt without seal.

3164. Subscribing witness defined.

3165. Writings called for and inspected may be withheld. 3166. Proof of private writings.

SUBCHAPTER V-EFFECT OF JUDGMENTS

3191. Effect of judgments generally.

3192. Effect of other judicial orders.

3193. Parties; when deemed to be the same.

3194. Matters deemed adjudged in judgment.

3195. Principal bound when surety bound.

3196. Judicial record of a State; enforcement; personal representatives. 3197. Record of foreign admiralty court.

3198. Effect of foreign judgment.

3199. Impeachment of judicial record.

3200. Jurisdiction necessary to sustain judgment.

SUBCHAPTER VI-PRESUMPTIONS

3221. Conclusive presumptions.

3222. Disputable presumptions.

SUBCHAPTER VII-PARTICULAR CASES; STATUTE OF FRAUDS

3251. Offer equivalent to tender.

3252. Right to receipt for payment or delivery.

3253. Objections to tender must be specified.

3254. Compromise offer.

3255. Statute of frauds; transfer of real property.

3256. Same; wills, trusts, and specific performance. 3257. Same; contracts.

3258. Same; representation of credit.

Subchapter I-General Provisions

§3051. Degree of certainty required to establish facts

The law does not require demonstration; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty; because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

§ 3052. Number of witnesses to prove fact

Except as otherwise provided by law, the direct evidence of one witness who is entitled to full credit is sufficient for the proof of any fact.

§ 3053. Effect of declarations and acts of one person on rights of another

(a) The rights of a party may not be prejudiced by the declaration, act, or omission of another, except by virtue of a particular relation between them; therefore, proceedings against one may not affect another.

(b) Where one derives title to real property from another, the declaration, act, or omission of the latter, while holding the title, in relation to the property, is evidence against the former.

(c) Where the declaration, act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, the declaration, act, or omission is evidence, as part of the transaction.

(d) Where the question in dispute between the parties is the obligation or duty of a third person, whatever would be the evidence for or against the third person is prima facie evidence between the parties.

(e) The declaration, act, or omission of a member of a family who is a decedent, or out of the jurisdiction, is admissible as evidence of common reputation, in cases where, on questions of pedigree, such reputation is admissible.

(f) The declaration, act, or omission of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, is admissible as evidence to that extent against his successor in interest.

§ 3054. Part of transaction proved; admissibility of whole

When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other. When a letter is read, the answer may be given. When a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing, which is necessary to make it understood, may also be given in evidence.

§ 3055. Parol evidence rule; agreements reduced to writing

(a) 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; or

(2) where the validity of the agreement is the fact in dispute. (b) This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined by section 3059 of this title, 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.

§ 3056. Construction of writings; place of execution

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.

§ 3057. Construction of statutes or instruments; duty of judge

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. Where there are several provisions or particulars, a construction which will give effect to all shall be adopted, if possible.

§ 3058. Same; intent; general and particular provisions

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. When a general and a particular provision are inconsistent, the latter is paramount to the former. A particular intent will control a general one that is inconsistent with it.

§ 3059. Construction of instruments; circumstances

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.

§ 3060. Terms of writing; general acceptation; local or technical meaning

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 shall be construed accordingly.

§ 3061. Written words on printed form

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

§ 3062. Expert testimony in interpretation of instruments

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 characters, or who understand the language, is admissible to declare the characters or the meaning of the language.

§ 3063. Preference between two constructions of agreement

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.

8 3064. Notice or writing construed according to ordinary acceptation; notice of protest of bill or note

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 indorsers of a bill of exchange or promissory note, that it has been protested for want of acceptance or payment, shall 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.

§ 3065. Construction of statutes or instruments in favor of natural right

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.

83066. Usage, evidence as to

Evidence of usage may be given upon the trial to explain the true character of an act, contract, or instrument, where the true character is not otherwise plain; but usage is never admissible except as an instrument of interpretation.

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3067. Burden of proof

The party holding the affirmative of the issue shall produce the evidence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side.

3068. Proof of affirmative and negative allegations

A party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when the 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 a case when the allegation is a denial of the existence of a document, the custody of which belongs to the opposite party.

§ 3069. Proof of material allegations; relevant evidence

(a) A material allegation in a pleading is one which is essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient.

(b) None but a material allegation need be proved.

(c) Evidence shall correspond with the substance of the material allegations and be relevant to the question in dispute. Collateral questions shall therefore be avoided. It is, however, within the discretion of the court to permit inquiry into collateral fact, when the 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. 3070. Effect of evidence; instructions to jury

Where trial is by jury, the jury, subject to the control of the court, in the cases specified in this title, are the judges of the effect or value of evidence addressed to them, except when it is declared to be conclusive. They are, however, to be instructed by the court on all proper occasions:

(1) that their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence;

(2) that they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds;

(3) that a witness false in one part of his testimony is to be distrusted in others;

(4) that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution;

(5) that in civil actions the affirmative of the issue must be proved, and when the evidence is contradictory the decision must be made according to the preponderance of evidence; that in criminal actions guilt must be established beyond reasonable doubt;

(6) that evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore,

(7) that if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust; and

(8) that the jury are the exclusive judges of the credibility of a witness and that, in determining whether a witness speaks the truth, they may consider the manner in which he testifies; the character of his testimony; the evidence affecting his character for truth, honesty, or integrity, or his motives; and contradictory evidence.