reputation, and to entries in a family Bible, or other family books or charts, engravings on rings, family portraits and the like, as evidences of pedigree, and to the general reputation of a witness for truth, honesty or integrity when the truth, honesty or integrity of such witnesses is called in question.22

A witness may testify as to the circumstances under which an instrument in writing was made, including the situation of the subject of the instrument and of the parties to it, for the purpose of enabling the court to interpret the meaning of such instrument as understood by the parties thereto at the time of its execution; and may testify to the local, technical, or otherwise peculiar signification of the language of the instrument as used and understood by the parties thereto for the like purpose of enabling the court to interpret the instrument as so understood; and when the characters in the instrument are difficult to be deciphered or the language of the instrument is not understood by the court, the testimony of witnesses skilled in deciphering such characters, or who understand the language is admissable to declare the character, or the meaning of the language.23

The testimony of witnesses is admissible to prove that a written contract has been altered by an executed oral agreement.24

22. Code of Civil Procedure, Sec. 1870.

23. Code of Civil Procedure, Secs. 1860, 1861, 1863.

24. Civil Code, Sec. 1698.

CHAPTER XXV.

OF HEARSAY EVIDENCE AND OF THE CONTRADICTION OF WITNESS BY THE PARTY PRODUCING SUCH WITNESS.

Greenleaf defines hearsay evidence to be a kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also in part on the veracity and competency of some other person, and states that such evidence is uniformly incompetent to establish any specific fact, which, in its nature, is susceptible of being proved by witnesses who can speak from their own knowledge.1

And he states cases in which evidence usually called hearsay, is in fact original evidence, and admissible as original evidence, namely:

First, when the fact that the declaration was made, and not its truth or falsity, is the point in question;

Second, expressions of bodily or mental feelings, when the existence of such feelings is the subject of inquiry;

Third, cases of pedigree, and including the declarations of those nearly related to the party whose pedigree is in question;

Fourth, all other cases where the declaration offered in evidence may be regarded as a party of the res gestae.

What a party to an action has said may be a matter in question, in an action; and in many cases what a party to an action has said, or his conduct, may be a fact, from which the matter in question in the action, may be inferred.

Testimony of the statement, or of an admission by a party to an action, whether such admission be by statement or conduct, is testimony of a fact from which the matter in question may be presumed, and it is circumstantial evidence.

1. 1 Greenleaf Ev., Sec. 98.

Such admissions, however, should be received with great caution.2

Declarations when so connected with acts as to illustrate the character of such acts, and when contemporaneous with such acts, are a part of the res gestae, are original evidence and admissible as such evidence.3

The whole admission of a person is to be received and taken together.1

The party to an action who produces a witness to testify in an action will not be permitted to impeach such witness by testimony as to his general reputation for truth, honesty or integrity, but he may prove by other witnesses that the facts testified to by such witness are different from what the testimony of such witness states them to be; and it has been held, and is so declared by statute in California, that if such witness had previously made statements inconsistent with his testimony, this may be shown by the party calling such witness, after such previous statements have been related to him, with the circumstances of times, places, and persons present, and after he has been asked whether he made such statements, and if so, allowed to explain. them.

If such statements be in writing, they must be shown to the witness before any question concerning them is put to him.5Greenleaf states that the rule at common law was the same.R

But the evidence as to such former statements is not to be received as any evidence of the truth of the facts in such former statements contained, but are only evidence showing, or tending to show, that the testimony of the witness as to such facts, given on the trial of the action, is incorrect, or untrue.

CHAPTER XXVI.

OF THE CROSS-EXAMINATION AND IMPEACHMENT OF WITNESSES.

A party to an action is entitled to have a full cross-examination of a witness produced by the adverse party as to all matters testified to by such witness on his direct examination; and such cross-examination should be permitted to the extent of showing the situation of the witness with respect to the parties, to the action, and to the subject of litigation, his interest, his motives, his means of obtaining a correct and certain knowledge of the facts, as to which he gives testimony, and his powers of discernment and memory.

If, however, on cross-examination, a witness be examined as to collateral facts, his testimony as to such collateral facts cannot be contradicted.1

Each party may impeach the credibility of a witness of the opposite party, by testimony affecting the general reputation of such witness for truth, honesty or integrity; and by evidence that he has made at other times statements inconsistent with his present tesimony; but before such statements can be introduced in evidence, the statements must be related to the witness with the circumstances, of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them; and if the statements be in writing, they must be shown to the witness before any question is put to him concerning them.2

If the witness says he cannot remember whether he spoke the words or not, this is sufficient to allow the introduction of evidence that he did speak them.3

1.

2.

Greenleaf Ev., Sec. 445 et seq.

1 Greenleaf Ev., Sec. 462 et seq.; Code of Civil Procedure, Sec. 2052.

3. Payne v. State, 60 Ala. 80.

But it is only in such matters as are relevant to the issue that a witness can be contradicted.4

But if the witness has expressed hostility to or a bias against the party cross-examining him, and denies that he has so expressed himself, his testimony as to such matters may be contradicted by the testimony of other witnesses.5

If the witness denies having made the contradictory statements inquired of, and a witness is called to prove that he did make them, it has been held that the particular words must not be put, but the witness must be required to relate what passed.

Evidence of the good character of a party, in a civil action, or of a witness in any action, is not admissible until the character of such party or witness has been impeached, or unless the issue involves his character.

In impeaching the credit of a witness for truth, honesty or integrity, the examination must be confined to evidence of his general reputation as to such traits of character where he dwells, or among persons with whom he is chiefly conversant; and when the impeaching witness shows that he has such knowledge, then the witness may testify as to whether such reputation is good or bad; but the person calling the witness whose credit is sought to be impeached, should have the fullest opportunity of crossexamination of the impeaching witness as to his knowledge and means of knowledge of such reputation, before the impeaching witness will be permitted to testify whether such reputation is good or bad. If the impeaching witness shows that he has knowledge of such reputation he then may testify whether such reputation is good or bad, and in England, and in some of the states, the impeaching witness is further permitted to testify whether from such knowledge he would believe upon his oath the witness whose credit is so sought to be impeached.

The party who has called the witness whose credit is sought to be impeached may attack the general character of the impeaching witness, and by fresh evidence as to his general reputation, support the character of his own witness.

4. 1 Greenleaf Ev., 462.

5. 1 Greenleaf Ev., Sec. 450; Newton v. Harris, 2 Seld 345.