also, the original record of such conveyance or instrument thus acknowledged or proved, 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 instrument, without further proof.-1889-45. CHAPTER IV. Material Objects Presented to the Senses, Other than Writings. Section 1954. Material objects. 1954. Whenever an object, cognizable by the senses, has such a relation to the fact in dispute as to afford reasonable grounds of belief respecting it, or to make an item in the sum of the evidence, such object may be exhibited to the jury, or its existence, situation, and character may be proved by witnesses. The admission of such evidence must be regulated by the sound discretion of the court. Section CHAPTER V. Indirect Evidence. Inferences and Presumptions. Section 1957. Indirect evidence classified. 1962. Specification of conclusive 1958. Inference defined. 1959. Presumption defined. 1960. When an inference arises. 1961. Presumptions may be con troverted, when. presumptions. 1963. All other presumptions may be controverted. 1957. Indirect evidence is of two kinds: 1. Inferences; and, 2. Presumptions. 1958. An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect. 1959. A presumption is a deduction which the law expressly directs to be made from particular facts. 1960. An inference must be founded: 1. On a fact legally proved; and, 2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature. 1961. A presumption (unless declared by law to be conclusive) may be controverted by other evidence, direct or indirect; but unless so controverted the jury are bound to find according to the presumption. 1962. The following presumptions, and no others, are deemed conclusive: 1. A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another; 2. The truth of the facts recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration; 3. Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it; 4. A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation; 5. The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate: 6. The judgment or order of a court, when declared by this code to be conclusive; but such judgment or order must be alleged in the pleadings if there be an opportunity to do so; if there be no such opportunity, the judgment or order may be used as evidence. 7. Any other presumption which, by statute, is expressly made conclusive. 1963. All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind: 1. That a person is innocent of crime or wrong; 2. That an unlawful act was done with an unlawful intent; 3. That a person intends the ordinary consequence of his voluntary act; 4. That a person takes ordinary care of his own concerns; 5. That evidence willfully suppressed would be adverse if produced; 6. That higher evidence would be adverse from inferior being produced; 7. That money paid by one to another was due to the latter; 8. That a thing delivered by one to another belonged to the latter; 9. That an obligation delivered up to the debtor has been paid; 10. That former rent or installments have been paid when a receipt for later is produced; 11. That things which a person possesses are owned by him; 12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership; 13. That a person in possession of an order on himself for the payment of money, or the delivery of a thing, has paid the money or delivered the thing accordingly; 14. That a person acting in a public office was regularly appointed to it; 15. That official duty has been regularly performed; 16. That a court or judge, acting as such, whether in this state or any other state or country, was acting in the lawful exercise of his jurisdiction; 17. That a judicial record, when not conclusive, does still correctly determine or set forth the rights of the parties; 18. That all matters within an issue were laid before the jury and passed upon by them; and in like manner, that all matters within a submission to arbitration were laid before the arbitrators and passed upon by them; 19. That private transactions have been fair and regular; 20. That the ordinary course of business has been followed; 21. That a promissory note or bill of exchange was given or indorsed for a sufficient consideration; 22. That an indorsement of a negotiable promissory note or bill of exchange was made at the time and place of making the note or bill; 23. That a writing is truly dated; 24. That a letter duly directed and mailed was received in the regular course of the mail; 25. Identity of person from identity of name; 26. That a person not heard from in seven years is dead; 27. That acquiescence followed from a belief that the thing acquiesced in was conformable to the right or fact; 28. That things have happened according to the ordinary course of nature and the ordinary habits of life; 29. That persons acting as copartners have entered into a contract of copartnership. 30. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; 31. That a child born in lawful wedlock, there being no divorce from bed and board, is legitimate; 32. That a thing once proved to exist continues as long as is usual with things of that nature; 33. That the law has been obeyed; 34. That a document or writing more than thirty years old is genuine, when the same has been since generally acted upon as genuine, by persons having an interest in the question, and its custody has been satisfactorily explained; 35. That a printed and published book, purporting to be printed or published by public authority, was so printed or published; 36. That a printed and published book, purporting to contain reports of cases adjudged in the tribunals of the state or country where the book is published, contains correct reports of such cases; 37. That a trustee or other person, whose duty it was to convey real property to a particular person, has actually conveyed to him, when such presumption is necessary to perfect the title of such person or his successor in interest; 38. The uninterrupted use by the public of land for a burial ground, for five years, with the consent of the owner, and without a reservation of his rights, is presumptive evidence of his intention to dedicate it to the public for that purpose; 39. That there was a good and sufficient consideration for a written contract; 40. When two persons perish in the same calamity, such as a wreck, a battle, or a conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age, and sex, according to the following rules: First. If both of those who have perished were under the age of fifteen years, the older is presumed to have survived; Second. If both were above the age of sixty, the younger is presumed to have survived; Third. If one be under fifteen and the other above sixty, the former is presumed to have survived; Fourth. If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived; if the sexes be the same, then the older; Fifth. If one be under fifteen, or over sixty, and the other between those ages, the latter is presumed to have survived. 1967. The law makes certain evidence necessary to the validity of particular acts, or the proof of particular facts. 1968. Perjury and treason must be proved by testimony of more than one witness. Treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances. 1969. 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.-1873-388. 1970. A written will cannot be revoked or altered otherwise than as provided in the Civil Code.-1873-388. 1971. No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing. 1972. The preceding section must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law, nor to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof. 1973. In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement, cannot be received without the writing or secondary evidence of its contents: 1. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in section twentyseven hundred and ninety-four of the Civil Code; 3. An agreement made upon consideration of marriage other than a mutual promise to marry; 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accepts or receives part of such goods and chattels or the evidences, or some of them, of such things in action, or pays at the time some part of the purchase-money; but when a sale is made at auction, an entry by the auctioneer in his sale-book, at the time of the sale, of the kind of property sold, the terms of the sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged; 6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission; 7. An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make any provision for any person by will.-1907-563. 1974. No evidence is admissible to charge a person upon a representation as to the credit of a third person, unless such representation, or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party to be charged. |