3391. Id. Certification. Justice as a witness. There must be attached to the transcript, a certificate of the justice that the transcript is in all respects correct, and that he had jurisdiction of the action, and also a further certificate of the clerk or prothonotary of the county in which the justice is a resident at the time of rendering the judgment, under the seal of the county, or the seal of the court of common pleas or county court or court of general jurisdiction thereof, certifying that the person subscribing the transcript was, at the date of the judgment, a justice of the peace in the county, and that the signature is genuine. Such judgment, proceedings, and jurisdiction may also be proved by the justice himself, on the production of his docket, or by a copy of a judgment, and his oral examination as a witness. [C. L. § 3897.

Cal. C. Civ. P. ? 1922*.

3392. Form of certificate to copy. Whenever a copy of a writing is certified for the purpose of evidence, the certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be. [C. L. § 3898.

Cal. C. Civ. P. ? 1923.

3393. Such certificate to be under seal. Such certificate must be under the official seal of the certifying officer, if there be any, or, if he be the clerk of a court having a seal, under the seal of such court. [C. L. § 3898.

Cal. C. Civ. P. ? 1923.

3394. Effect of certificate of purchase as evidence. A certificate of purchase or of location of any lands in this state, issued or made in pursuance of any law of the United States, is prima facie evidence that the holder or assignee of such certificate is the owner of the land described therein; but this evidence may be overcome by proof that, at the time of the location, or time of filing a pre-emption claim on which the certificate may have been issued, the land was in the adverse possession of the adverse party, or those under whom he claims, or that the adverse party is holding the land for mining purposes. [C. L. § 3899.

Cal. C. Civ. P. ? 1925*.

3395. Id. By officer, or board of officers. An entry made by an officer, or board of officers, or under the direction and in the presence of either. in the course of official duty, is prima facie evidence of the facts stated in such entry. [C. L. § 3900.

Cal. C. Civ. P. ? 1926.

CHAPTER 52.

PRIVATE WRITINGS.

3396. Private writings defined. Private writings are either:

1.

Sealed; or,

2. Unsealed. [C. L. § 3901.

Cal. C. Civ. P. ? 1929.

3397. Seal defined. A seal is a particular sign, made to attest in the most formal manner, the execution of an instrument. [C. L. § 3902.

Cal. C. Civ. P. 1930.

3398. Public and private seals defined. Foreign seal. A public seal in this state is a stamp or impression made by a public officer with an instrument provided by law, to attest the execution of an official document, upon the paper, or upon any substance attached to the paper which is capable of receiving a visible impression. A private seal may be made in the same manner by any instrument, or it may be made by a scroll of the pen, or by writing the word

"seal" against the signature of the writer.

A scroll or other sign, made in another state or a territory or a foreign country, and recognized as a seal, must be so regarded in this state. [C. L. § 3903.

Cal. C. Civ. P. 1931*.

3399. Private seal not necessary. It shall not be necessary to use private seals on any instrument of writing in this state. ['90, p. 90.

3400. Histories, scientific works, maps, etc., prima facie evidence. Historical works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, are prima facie evidence of facts of general notoriety and interest. [C. L. § 3904.

Cal. C. Civ. P. 1936.

3401. Notice to adverse party to produce writing. Proof. If a writing to be proved be in the custody of the adverse party, he must first have reasonable notice to produce it. If he then fail to do so, the contents of the writing may be proved as in case of its loss. But the notice to produce it is not necessary where the writing is itself a notice, or where it has been wrongfully obtained or withheld by the adverse party. [C. L. § 3905.

Cal. C. Civ. P. 1938.
Demand for inspection of writing, 2985. Refusal
Demand for copy of writing, etc., order, ? 3474. to admit genuineness of writing, effect,

3473.

3402. Party demanding writing not required to use it. Though a writing called for by one party is produced by the other, and is thereupon inspected by the party calling for it, he is not obliged to produce it as evidence in the case. [C. L. § 3906.

Cal. C. Civ. P. 2 1939.

3403. Writings, how proved. Any writing may be proved either: By any one who saw the writing executed; or,

1.

2. By evidence of the genuineness of the handwriting of the maker; or, 3. By a subscribing witness.

Cal. C. Civ. P. 1940.

[C. L. § 3907.

3404. Id. When subscribing witness denies or forgets. If the subscribing witness denies or does not recollect the execution of the writing, its execution may still be proved by other evidence. [C. L. § 3908.

Cal. C. Civ. P. 1941.

3405. Id. Admission of genuineness by adverse party sufficient. When, however, evidence is given that the party against whom the writing is offered has at any time admitted its execution, no other evidence of the execution need be given, when the instrument is one produced from the custody of the adverse party, and has been acted upon by him as genuine. [C. L. § 3909. Proof of instruments sent by telegraph, ? 2700.

Cal. C. Civ. P. 1942*.

3406. Entry made by decedents, when prima facie evidence. The entries and other writings of a decedent made at or near the time of the transaction, and when he was in a position to know the facts stated therein, may be read as prima facie evidence of the facts therein stated, in the following cases:

2.

1. When the entry was made against the interest of the person making it. 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. [C. L. § 3910.

Cal. C. Civ. P. ¿ 1946.

3407. Private writing, acknowledged and certified, prima facie evidence of execution. 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 of proof is prima facie evidence of the execution of the

writing, in the same manner as if it were a conveyance of real property. [C. L. $3911.

Cal. C. Civ. P. ? 1948.

3408. Will invalid unless formally executed. Proof. A last will and testament, except a nuncupative will, is invalid, unless it be in writing and executed with such formalities as are required by law. When, therefore, such a will is to be shown, the instrument itself must be produced, or secondary evidence of its contents be given. [C. L. § 3915.

Cal. C. Civ. P. 2 1969.

Execution of will, 2735.

3409. Conveyance acknowledged and certified, prima facie evidence. Certified copy. Every instrument conveying or affecting real property, acknowledged, or proved and certified, as provided by law, may, together with the certificate of acknowledgment or proof, be read in evidence, in an action or proceeding, without further proof; and the record, or a certified copy of the record of such conveyance or instrument thus acknowledged or proved, may be read in evidence, with the like effect as the original, on proof by affidavit or otherwise, that the original is not in the possession or under the control of the party producing the record or the certified copy. [C. L. § 3912*.

Cal. C. Civ. P. ? 1951*.

Conveyance, etc., sent by telegraph as evidence, ?? 2697-2700.

3410. When parol evidence of writing admissible. 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 has been lost or destroyed; in which case proof of the loss or destruction must first be made.

2. When the original is in the possession of the party against whom the evidence is offered, and he fails to produce it after reasonable notice.

3.

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

4.

When the original has been recorded, and a certified copy of the record is made evidence by this code or other statute.

5. When the original consists 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 three and four, a copy of the original, or of the record, must be produced; in those mentioned in subdivisions one and two, either a copy or oral evidence of the contents.

Cal. C. Civ. P. 1855.

[C. L. § 3913.

A party who states that he has left the original deed with a person in the city where the trial is had, and that he has made no attempt to get the same, is not entitled to offer a copy of such deed in evidence. Wilson v. Wright, 8 Ü. 215; 30 P. 754.

Secondary evidence is admissible to prove the contents of an instrument traced to the hands of a party not within the state without showing that the original was lost or destroyed; and in such case no notice to produce is necessary. Dwyer v. S. L. C. Copper Mfg. Co., 14 U. 339; 47 P. 311.

3411. Material alterations require explanation. The party producing as genuine a writing which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he do that, he may give the writing in evidence, but not otherwise. [C. L. § 3921.

Cal. C. Civ. P. ? 1982.

CHAPTER 53.

WITNESSES.

COMPETENCY.

3412. Who may be witnesses. Jury exclusive judges of credibility. 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. 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 witness may be drawn in question, by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive judges of his credibility. [C. L. § 3876.

Cal. C. Civ. P. ? 1879*.

3413. Cannot be witnesses: mentally unsound; children under ten; parties to transactions with deceased or insane. The following persons cannot be witnesses:

1.

examination.

Those who are of unsound mind at the time of their production for 2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.

3. A party to any civil action, suit, or proceeding, and any person directly interested in the event thereof, and any person from, through, or under whom such party or interested person derives his interest or title or any part thereof, when the adverse party in such action, suit, or proceeding claims or opposes, sues or defends as guardian of any insane or incompetent person, or as the executor or administrator, heir, legatee, or devisee of any deceased person, or as guardian, or assignee, or grantee, directly or remotely, of such heir, legatee, or devisee as to any statement by, or transaction with, such deceased, insane, or incompetent person, or matter of fact whatever, which must have been equally within the knowledge of both the witness and such insane, incompetent, or deceased person, unless such witness be called to testify thereto by such adverse party, so claiming or opposing, suing or defending in such action, suit, or proceeding. [C. L. § 3877*; '94, pp. 26-7.

Cal. C. Civ. P. ? 1880*.

In a suit against an administrator to enforce a trust against decedent and for an accounting thereunder, the testimony of the plaintiff of facts equally within his knowledge and that of the decedent, is inadmissible under section 3877, C. L. 1888. Wood v. Fox, and Whitney v. Fox, 8 U. 3-0; 32 P. 48. Affirmed, 166 U. S. 637. This section applies to suits brought by as well as suits brought against an executor or administrator. Ewing v. White, 8 U. 250; 30 P. 984.

In action by child omitted from will to obtain share of the estate under 2677, C. L. 1888, devisees

are not competent witnesses against him. Atwood's estate, 14 U. 1; 45 P. 1036.

A party to an action to establish his interest in the estate of a deceased person cannot testify in his own behalf to any conversation or transaction equally within his own knowledge and the knowledge of the person since deceased, when the opposite party sues or defends as heir of such deceased person. Hennefer v. Hayes, and Bunce v. Hayes, McLaughlin v. Hayes, and Campbell v. Hayes, 14 U. 324; 47 P. 90. See Chambers v. Emery, 13 U. 374; 45 P. 192.

3414. Id. Privileged communications. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following

cases:

1. A husband cannot be examined for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor can either. during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this

exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.

2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given therein, in the course of professional employment; nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which had been acquired in such capacity.

3. A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.

4. A physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.

5. A public officer cannot be examined as to communications made to him in official confidence, when the public interests would suffer by the disclosure. [C. L. § 3878*.

Cal. C. Civ. P. ? 1881*.

Husband not compelled to testify against wife or wife against husband, Con. art. 1, sec. 12. In criminal action, 22 4515, 5014.

Section 379 of the practice act excludes the wife from testifying for or against her husband, except when the action is between themselves, and when a witness is offered by a party to the suit, with the statement that "she is his plural, or second wife,"

such witness will be excluded, and the court will not try the question of the validity of the marriage or the relations of the parties. Friel v. Wood, 1 U. 160.

A statement by a party to an attorney that he intends to commit a crime and asking advice as to the effect of it is not privileged hereunder. People v. Mahon, 1 U. 205.

3415. Judge or juror may be a witness. Proceeding. The judge himself or any juror may be called as a witness by either party; but in such case it is in the discretion of the court to order the trial to be postponed or suspended, and to take place before another judge or jury. [C. L. § 3879.

Cal. C. Civ. P. ? 1883.

3416. Interpreter may be summoned. Contempt. When a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him. Any person may be summoned by any court or judge to appear before such court or judge to act as interpreter in any action or proceeding. The summons must be served and returned in like manner as a subpoena. Any person so summoned who fails to attend at the time and place named in the summons is guilty of a contempt. [C. L. § 3880.

Cal. C. Civ. P. 1884*.

Fee of interpreter, 1007.

Juror may act as interpreter. People v. Thiede,

11 U. 241; 39 P. 837. Affirmed, Thiede v. People, 159 U. S. 510.

PRODUCTION OF WITNESSES.

3417. Subpoena defined. May require production of books, etc. The process by which the attendance of a witness is required is a subpoena. It is a writ or order directed to a person and requiring his attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other things under his control which he is bound by law to produce in evidence. [C. L. § 3922.

Cal. C. Civ. P. 2 1985.

3418. Id. To require attendance before court or officer, etc. Contempt. The subpoena is issued as follows:

1. To require attendance before a court, or at the trial of an issue therein, it is issued in the name of the court before which the attendance is required, or in which the issue is pending.

2. To require attendance out of the court, before a judge, justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of this state, it is issued by the judge, justice, or any other officer before whom the attendance is required.