Inconclusive or disputable presumptions of law are those where a fact is presumed to exist, either from the general experience of mankind, or from policy, or from proof of the existence of certain other facts, until some thing is offered to show the contrary. Thus, the law presumes a man to be sane until the contrary appears, and to be innocent of the commission of a crime until he is proved to be guilty. So, the existence of a person, or of a particular state of things, being shown, the law presumes the person or state of things to continue until something is offered to con flict with that presumption. See Best on Presumption, ch. ii.
But the presumption of life may be rebut ted by another presumption. Where aparty has been absent from his place of residence for the term, of seven years, without having been heard of, this raises a presumption of his death, until it is encountered by some evi dence showing that be is actually alive, or was so within that period.
5. Presumptions of fact are not the subject of fixed rules, but are merely natural pre sumptions, such as appear, from common experience, to arise from the particular cir cumstances of any case. Some of these are "founded upon a knowledge of the human character, and of the motives, passions, and feelings by which the mind is usually influ enced." 1 Starkie, Ev. 27.
They may be said to be the conclusions drawn by the mind from the natural connec tion of the circumstances disclosed in each case, or, in other words, from circumstantial evidence.
Circumstantial evidence is sometimes used as synonymous with presumptive evidence ; but presumptive evidence is not necessarily and in all cases what is usually understood by circumstantial evidence. The latter is that evidence which tends to prove a disputed fact by proof of other facts which have a legiti mate tendency, from the laws of nature, the usual connection of things, the ordinary transaction of business, etc., to lead the mind to a conclusion that the fact exists which is sought to be established. See 1 Starkie, Ev. 478. Presumptive evidence may sometimes be the result, to some extent, of an arbitrary rule—as in the case of the presumption of death after an absence of seven years with out being heard of—derived by analogy from certain statutes.
The jurists and the jury draw conclusions from circumstantial evidence, and find one fact from the existence of other facts shown to them,—some of the presumptions being so clear and certain that they have become fixed as rules of law, and others having greater or less weight according to the circumstances of the case, leaving the matter of fact inquired about in doubt until the proper tribunal to determine the question draws the conclusion.
6. In its legal character, evidence is pri mary or secondary, and primil facie or con clusive.
Primary evidence. The best evidence, or that proof which most certainly exhibits the true state of facts to which it relates. The law requires this, and rejects secondary or inferior evidence when it is attempted to be substituted for evidence of a higher or superior nature. For example, when a written contract has been entered into, and the object is to prove what it was, it is re quisite to produce the original writing, if it is to be attained ; and in that case no copy or other inferior evidence will be received.
This is a rule of policy, grounded upon a reasonable suspicion that the substitution of inferior for better evidence arises from sinister motives, and an apprehension that the hest evidence, if produced, would alter the case to the prejudice of the party. This rule relates not to the measure and quantity of evidence, but to its quality when compared with some other evidence of superior degree.
To this general rule there are several ex ceptions. 1. As it refers to the quality rather than to the quantity of evidence, it is evident that the fullest proof that every case admits of is not requisite : if, therefore, there are several eye-witnesses to a fact, it may be sufficiently proved by one only. 2. It is not always requisite, when the matter to be proved has been reduced to writing, that the writing should be produced: as, if the nar rative of a fact to be proved has been com mitted to writing, it may yet be proved by parol evidence. A receipt tor the payment of money, for example, will not exclude parol evidence of payment. 4 Esp. 213. And see 7 Barnew. & C. 611 ; 1 Campb. 439 ; 3 Barnew. & Ald. 566.
7. Secondary evidence. That species of proof which is admissible when the primary evidence cannot be produced, and which be comes by that event the best evidence. 3 Yeates, Penn. 530.