Presumptive evidence may sometimes be the result, to some extent, of any 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 judge 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 cir cumstances of the case, leaving the matter of fact inquired about in doubt until the proper tribunal to determine the question draws the conclusion.
In its legal character, evidence is primary or secondary, and prima facie or conclusive.
Primary evidence is 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 su perior nature. For example, when a written contract has been entered into, and the ob ject is to prove what it was, it is requisite 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 sin ister motives, and an apprehension that the best 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 narrative of a fact to be proved has been committed to writing, it may yet be proved by parol evidence. A receipt for the pay ment of money, for example, Will not ex clude parol evidence of payment; 4 Esp. 213. And see 3 B. & Ald. 566; Meade v. Keane, 3 Cra. C. C. 51, Fed. Cas. No.•9,373 ; Bonesteel v. Gardner, 1 Dak. 372, 46 N. W. 590; Chapin v. Dobson, 78 N. Y. 82, 34 Am. Rep. 512. The evidence of a father and mother, cognizant of their child's birth, is primary evidence of its date or the age of the child, although there is a written record thereof in the family Bible ; State v. Woods, 49 Kan. 237, 30 Pac. 520; Hawkins v. Taylor, 1 McCord (S. C.) 164; Hermann v. State, 73 Wis. 248, 41 N. W. 171, 9 Am. St. Rep. 789. A stenographer's notes of the testimony of a witness are not the best evidence of such. testimony, so as to prevent any other person who was present from testifying in relation thereto ; Brice v. Miller, 35 S. C. 537, 15 S. E. 272; Nasanowitz v. 'Hanf, 17 Misc. 157, 39 N. Y. Supp., 327. Documentafy evidence is not the best evidence of marriage ; People v. Perriman, 72 Mich. 184, 40 N. W. 425. Oral admissions of a party against himself as to the contents of a writing are primary evidence; Morey v. Hoyt, 62 Conn. 542, 26
Atl. 127, 19 L. R. A. 611.
Secondary evidence is that species of proof which is admissible when the primary evi dence cannot be produced, and which be comes by that event the best evidence that can be adduced. Armstrong's Lessee v. Mor gan, 3 Yeates (Pa.) 530.
But before such evidence can be allowed it must be clearly made to appear that the superior evidence is not to be had; Phillips v. O'Neal, 87 Ga. 727, 13 S. E. 819 ; Curtis v. Wilcox, 91 Mich. 229, 51 N. W. 992. The person who possesses it must be applied to, whether he be a stranger or the opposite party : in the case of a stranger, a subpoena and attachment, when proper, must be taken out and served; and in the case of a party,. notice to produce such primary evidence must be proved before the secondary evi dence will be admitted; Patton's Adm'rs v. Ash, 7 S. & R. (Pa.) 116; 3 B. & Ald. 296; Susquehanna & W. V. R. & Coal Co. v. Quick, 61 Pa. 328 ; Gallagher v. Assur. Corp., 149 Pa. 25, 24 Atl. 115 ; King Optical Co. v. Treat, 72 Mich. 599, 40 N. W. 912; 7 Exch. 639; Louisville & N. R. Co. v. Orr, 94 Ala. 602, 10 South. 167; De Barie v. Pardo, 6 Sadler (Pa.) 148, 8 Atl. 876, where this rule is discussed at large by Arnold, J. whose views were affirmed without an opinion. "If there are several sources of information of the same fact, it is not ordinarily necessary to show that all have been exhausted before secondary evidence can be resorted to." Smith v. Brown, 151 Mass. 338, 24 N. E. 31. See Kleiman v. Geiselmann, 45 Mo. App. 497; McCormick v. Anderson, 83 Ala. 401, 3 South. 796 ; McClure v. Campbell, 25 Neb. 57, 40 N. W. 595. Secondary evidence of the contents of a written contract is inadmissi ble in the absence of proper diligence to se cure the original; Low v. Tandy, 70 Tex. 745, 8 S. W. 620; Whaun & Co. v. Atkinson, 84 Ala. 592, 4 South. 681. After proof of the due execution of the original, the contents should be proved by a counterpart, if there be one, for this is the next best evidence; and it seems that no evidence of a copy is admissible until proof has been given that the counterpart cannot be prochiced; 6 Term 236. If there be no counterpart, a copy may be proved in evidence by any witness who knows that it is a copy, from having com pared it with the original; Meyer v. Barker, 6 Binn. (Pa.) 234; Buttrick v. Allen, 8 Mass. 273, 5 Am. Dec. 105. If regularly recorded, an office copy may be given in evidence. If there be no copy, the party may produce an abstract, or even give parol evidence of the contents of a deed ; 6 Term 556. A tran scribed telegraphic message which is actually delivered is primary evidence, and if lost or destroyed its contents may be proved by parol; Magie v. Herman, 50 Minn. 424, 52 N. W. 909, 36 Am. St. Rep. 660. See Terre Haute & I. R. Co. v. Stockwell, 118 Ind. 98, 20 N. E. 650; Anheuser-Busch Brewing Co. v. Hutmacher, 127 Ill. 652, 21 N. E. 626, 4 L. R. A. 575. Letterpress copies of writings are secondary evidence; Thompson-Houston Electric Co. v. Berg, 10 Tex. Civ. App. 200, 30 S. W. 454; and where there were such, next to the originals, they were the best evi dence and oral evidence should have been re jected; Ford v. Cunningham, 87 Cal. 209, 25 Pac. 403; and as to copies of documents made by mechanical means, as originals, see 12 L. R. A. (N. S.) 343, note.