« ForrigeFortsett »
of the case were somewhat similar to the case, which interrogation of Strom, Peterson did at bar. However, the payments made in the not respond. This evidence did not particuyears 1886 to 1888 took the case out of the stat. larly relate to an admission of payment, but ute, and made the account between the parties might tend to show that there was no original a mutual one. It is urged that the regularity contract to pay for services rendered by Peterof payments of $6 monthly during these years son. It was strong evidence against Peterson, leads to the inference that these payments were but the court and jury seem to have treated it in full for those years, and had po reference to of small moment, taken in connection with the past transactions; but there is testimony that other evidence in the cause; and we think that during these periods and afterwards the dece. their action in this respect, although the addent had stated that he had not paid Peterson mission was not denied by Peterson, is not anything, and that his wages were $30 per error, because the weight to be given to testimonth. There certainly was evidence to the mony of mere admissions is to be determined effect that these payments were part, and not by the jury, and it may be proper for the court complete, payments, and it can reasonably be to instruct them that such testimony is usually inferred from the evidence that they were onuosatisfactory, and should be received with account. In New York, such payments bave great caution. Saveland v. Green, 40.Wis. 431, been held sufficient to take the case out of the 444. The instruction was too sweeping in its statute, and such holding is not contrary to the terms, and the ground was fully covered by views announced in the cases from that state another instruction which was given at the realready cited. Smith v. Velie, 60 N. Y. 106; quest of the defendant below, in substance, Re Gardner, 103 N. Y. 533, 57 Am. Rep. 768. that if the plaintiff knew before the death of The ruling of the court refusing to give the in. Strom that the latter desired and requested all struction, and to apply the statute of limita- bis creditors, including Peterson, to present tions to that portion of the claim prior to Sep- their claims before his death, and if plaintiff tember 23, 1885, was warranted under the refused to do so, and said that nothing was due evidence.
him, that fact raised a strong presumption The court was asked to instruct the jury against him. that the declarations of a creditor, as in the Some of the books of account of the dece. case of plaintiff below, that any debt of the dent were destroyed by the plaintiff, Peterson, deceased to bim is discharged, or that there is and the only books found were those discovpotbing due bim, is prima facie evidence of ered concealed under a barrel, and a calendar payment. Peterson admitted to witnesses that found hanging on the wall. Upon the latter Strom owed bim nothing, directly after the entries were made showing that at the close of latter, in bis last sickness, asked him, if there January of that year Peterson was paid for ove was anything due, to make out his bill, to montb, and at the close of the year was paid
But in the American courts it is held that the that rule to the extent of not holding spoliation presumption arises against nothing but the evi- alone to be defamatory when other circumdence destroyed. Thompson v. Thompson, 9 Ind. stances were clear. The Hunter. 1 Dods. Adm. 480, 323, 68 Am. Dec. 638; Life & F. Ins. Co. v. Mecbanic | 486, 487; The Two Brothers, 1 Rob. Adm. 131; The F. Ins. Co. Wend. 31; Wilson v. Cassidy, 2 Ind. Rising Sun, 2 Rob. Adm. 104; The Polly, Id. 381; 562.
The Johanna Emilie, 18 Jur. 703. An affidavit which is of itself sufficient to open the door for secondary evidence of the contents of III. Where a party adversely interested destroys or a promissory note is not itself evidence of the con
withholds evidence to which the adversary is entitents of the note. Almy v. Reed, 10 Cush. 421.
tled. The affidavit of the contents of a letter not pro
a. The rue. duced was admitted because, as the court said, "if untrue it was at the imminent peril of exposure by Courts will go far in presuming against those the production of the letter, and that under such who destroy documents and instruments necessary circumstances the representation in the affidavit to the security or elucidation of the rights of must be taken to be as true.” Lumley v. Wagner, 1 others, but there is a limit to the application of De G. M. & G. 604, 634, 21 L. J. Ch. N. S. 898, 16 Jur. 871. the term "everything” as it is used in the rule
“Everything will be presumed against the dec. The rule and evidence in admiralty. spoiler.” Diehl v. Emig, 65 Pa. 328; Halyburton v.
Kershaw, 3 Desauss. Eq. 105; Preston v. Leighton, In admiralty prize courts it is a recognized law 6 Md. 88; Carneal v. Day, Litt. Sel. Cas. 492, 493. of nations that neutral property is free from con- The principle of the maxim Omnia præsumuntur fiscation. But where such neutrality cannot be in odium spoliatoris, as applicable to the destrucshown satisfactorily because the ship's pa pers bavetion or suppression of a written instrument, is that been destroyed, and such destruction or spoliation such destruction or suppression raises a presumphas not been frankly and satisfactorily explained, tion that the document would, if produced, mitia presumption of mala fides is raised, and the prop- gate against the party destroying or suppressing erty will be condemned as that of the enemy, unless it, and that his conduct is attributable to this cirsuch presumption is removed by other evidence cumstance. There is great danger that the maxim admitted within the discretion of the prize court as may be carried too far. It cannot properly be in other cases. This is the American rule. The pushed to the extent of dispensing with the necesPizarro, 15 U. S. A Wbeat. 227, 4 L. ed. 226; The sity of other evidence, and should be regarded "as Peterhoff, Blatchf. Pr. Cas. 463.
merely matter of inference, in weighing the effect The maritime courts on the continent of Europe of evidence in its own nature applicable to the excluded further proof after spoliation was estab- subject in dispute.” Where there is express and lisbed, bolding that alone sufficient to raise the positive evidence, there is no place for presumppresumption against neutrality and to justify con- tion or inference. It is only in reference to the fiscation, but the English Admiralty Code, modified contents of the paper destroyed or withheld that
in full, and these entries were in the handwrit-lows: "If the jury believe from all the evidence ing of decedent. Judge Potter, who drew up in this case that the books of account of the the will, after the death of the testator left deceased, or any of them, were destroyed by Peterson in charge of the place of business of plaintiff, a presumption arises that, had the the decedent, where there were a number of truth appeared by said books, it would have account books. He afterwards examined them been against his interest." This instruction carefully, but was not allowed to state whetber was refused, and the court gave po other bearthere were any charges therein against any ing upon the question. The defendant was employee of the decedent, Strom. At the time entitled to an instruction covering the point, he was questioned upon this matter it had not for it is a universal rule that the suppression been shown that the books, or any of them, or destruction of evidence raises the presumphad been destroyed, and it seems that the question against the spoliator, where the evidence tion was properly objected to. No exception is relevant to the case, or where it was his duty was taken to the ruling of the court sustaining to preserve it. Omnia præsumuntur contra this objection, and the question, although a spoliatorem. Lawson, Presumptive Ev. 140 vital one in the case, was not renewed. Judge et seq. Where the spoliator is the claimant, Potter examined three or four of the books, he the fact of spoliation alone raises a presumpsays, very carefully, so that he had a general tion against his claim. Where a deed, a will, idea of them, without examining any particu- or other paper is proved to be destroyed or lar account. The books might have been in- suppressed, or there is vebement suspicion of tact when the inventory and appraisement were its having been done, the presumption, in taken, which took a day or two; and the wit- odium spoliatoris, applies in favor of the party ness stated that be was under the impression who claims under such paper, though the conthat he examined the books at that time, but tents are not proved. Id. 152, and cases cited. may have examined them before the inventory But there is great danger that the maxim may was taken. He had cbarged Peterson to leave be carried too far, and it should be cautiously everything as it was, and, when he discovered applied. In this case the mere destruction of that the books were burned, spoke sharply to the books is not sufficient to warrant the prePeterson, reminding him of the direction, and sumption that their contents were against the asked him wby the books had been destroyed. interest of Peterson, for they were burned after Peterson replied that Strom, the deceased, had they had been examined, and some time after told bim to burn them up. This answer was the funeral of Strom. There was no attempt made promptly, and Judge Potter says there made to conceal the books by Peterson, or to was nothing extraordinary in Peterson's con prevent their examination, and it nowhere apduct when he made this explanation. The in- pears that there were charges against Peterson struction asked for on this point was as fol-Ton the books destroyed, although it does appear
the maxim can have application:fand where the The rule may be applied in like cases to the fol. contents are proved there is no occasion for resort lowing: to the maxim. Bott v. Wood, 56 Miss. 136; Jones Where the defendant bas placed it beyond v. Knauss, 31 N. J. Eq. 609.
the power of the plaintiff to prove the execuWhere, then, a deed or will is shown to have tion of a bill of sale, proof of that fact will raise a been ia existence but to have been destroyed by presumption of its execution. Cheatbam v. Riddle, the adversary, it will be presumed that such deed 8 Tex. 162. or will contained the conditions favoring the party The destruction of a receipt will raise the prewho asserts them, when it was possible for it to sumption of the payment of money. Downing v. have contained them. Dalston v. Coatsworth, 1 Plate, 90 I11. 268. P. Wms. 731.
The failure of a party to perform his duty in This rule is built upon the cases of Rex v. keeping strict account of the workings in a coal Countess Arundel, Hob. 109; Sanson v. Rumsey, 2 mine extending under adjoining land raises the Vern, 561; Hampden v. Hampden, 1 Bro. P. C. 550; presumption that all the coal taken out came thereand Woodroff and Burton, Reg. Lib. A. 1722, fol. from. Dean v. Thwaite, 21 Beav. 621. 232, decided in the order named, and was followed The failure of a confidential agent to keep vouchin Lord Melville's Trial, 29 How. St. Tr. 1194. ers against himself while keeping those against his
No presumption arises except upon proof. In principal raised the presumption that he had reference may aid proof but cannot create it. There ceived his full compensation. White v. Lady Linmust be proof offered to sustain the allegations of coln, and Duke Newcastle v. Kinderley, 8 Ves. Jr. the pleadings, which proof, if insufficient, may be 363. aided by every presumption against the destroyer, The destruction of a contract by the vendor for but the mere proof of the destruction will not war the purcbase of land about the timea demand was ‘rant the rendition of a judgment which could oth- made by the vendee for the delivery of a deed was erwise only be supported by the facts evidenced by held sufficient to raise the presumption that it did the writing destroyed. Gage v. Parmelee, 87 III. pot state the agreement in the manner alleged by 329.
the vendor. Warren v. Crew, 22 Iowa, 315. The case of Cowper v. Earl Cowper, 2 P. Wms. 749 Upon proof that a member of the firm whose (A. D. 1734), was the first to emphatically iterate the duty it was to keep the books, expended more rule that no presumption could arise except upon money for personal or family expenses tban he has evidence, and it was based on the holdings in Rex charged himself with, the maxim in odium spoliav. Countess Arundel, Hob. 109; Gartside v. Ratcliff, toris applies. Dimond v. Henderson, 47 Wis. 172. 1 Ch. Cas. 292; Hunt v. Matthews, 1 Vern. 408; War- Where tbe controversy was as to the number of dour v. Berisford (said to be not rightly re- acres conveyed by a certain deed which the defendported), 1 Vern. 452; and Countess Plymouth v. ant might have produced, the court said: "Perhaps Bladon, 2 Vern. 32, which need no further consid- the presumption in odium spoliatoris might arise eration here. See also Moffat v. Moffat, 10 Bosw. 468, from the fact of the nonproduction of the deed and 501.
failure to account for its absence;" but the case
that the books discovered did contain charges notice to his creditors that be desired to pay against him. Whether Judge Potter's exami- bis bills. Other testimony was introduced, dation was sufficient or not to show that there showing that he had direcied the payinent of were such charges does not appear; neither does his local bills, and had requested ibat money it appear that he did not koow, or could not re- be taken from his safe for that purpose.
But member, whether there were any charges in the the publication referred to also indicates that books against the plaintiff. However, the in- he had no desire to press his claims against struction asked was too broad, and should have his creditors, and is in harmony with Peterbeen modified by counsel, for the mere fact son's statement that Strom bad directed him to of the destruction of the books alone does not burn his books. No instruction was asked sbow tbat they were evidence against the in- upon the question of this explanation of Peterterest of the spoliator. His conduct might not son, nor were the jury asked to be instructed have been that of a spoliator, but rather that to disregard it as evidence. It went to them of a stupid or ignorant man, who thought as his explanation of his conduct in destroying that he had a duty to perform, enjoined upon the books. It will be noticed that it appears him by his deceased employer; and there are that an inventory was taken of the property of some indications in the evidence that support the estate, but whether before or after the dethis view. Some four months prior to his struction of the books does not appear. It death, Strom published in a local daily paper should have been shown that the accounts a notice which the publisher states he believes against the creditors of the estate were not in was brought to him by Peterson, entitled "Ex: this inventory, or were not preserved. If they tends Thanks,” which states that on the 7th of were, and bad Peterson's account, if there was the month (May, 1893) Strom closed his liquor any against him, appeared in such inventory, house, and that he would store his goods, and, it could have been introduced as secondary if business would justify, would probably open evidence. the next summer, and, if not, he would ship his The instruction asked for presents the Britgoods away. He then presents his highest ish law governing the spoliation of documents. compliments to his "proper" customers, and Broom, Legal Maxims, 940; 1 Phillips, Ev. states: “Remember, if I am guilty to cred-(Cowen & H. potes) 639; Houser v. Austin, 2 itors for payment, come and collect. If any Idaho, 188, 198. The rule is strong in adpersons are guilty to me for liquors, please miralty cases, but upon this point Mr. Justice keep this [the notice) as a present.” This no- Story says in the case of The Pizarro, 15 U. S. tice was introduced for the purpose of show- 2 Wheat. 241, 4 L. ed. 229. “The objection ing that Strom was settling up bis accounts, which is urged against the admission of the and that, in addition to bis general custom of further proof would, under other circummeeting his obligations promptly, he had given | stances, deserve great consideration. Conceal.
was decided on other grounds. Barney v. Seeley, the means of establishing the value has been les38 Wis. 381.
sened or destroyed. In case of a change of formLikewise, the court announced its willingness as by the milling of ores-it is only where corrobthat the presumption should be the basis for the orating circumstances or secondary evidence bave decision of the case, but decided the case on other been destroyed that the strongest presumption will grounds in Wilson v. Cassidy, 2 Ind. 562.
arise from the direct testimony. Fox v. Hale & N. The destruction of forged notes after being Silver Min. Co. 108 Cal. 369. arrested for their utterance raised a presumption And such adverse presumption will not arise in of forgery. State v. Chamberlain, 89 Mo. 129, Fol- the absence of a purpose to suppress evidence, as lowing Pomeroy v. Benton, 77 Mo. 64.
by the mere sending away of hides taken from Upon the destruction of a second will by a person butchered animals alleged to have been wrongfully interested in opposition thereto so that the exact taken. People v. Hurley, 57 Cal. 146. contents of the will cannot be ascertained, the jury The destruction of books relating to matters long were held bound to infer that the second will con- since settled and never since disputed) will be tained inconsistent dispositions with the first, and treated lightly, and will not be allowed to prejudice further, that the second will contained a clause ex- the case; but it is entirely different where they repressly revoking all former wills, the court saying: late to recent transactions of which the accounts *It is far better that there should be an intestacy therefrom arising have not been adjusted. And than that a spoliator should be rewarded for his still more where that destruction was by the party dishonesty.” Jones v. Murphy. 8 Watts & S. 275, who has filed the bill to have accounts taken of 301.
those transactions. In such a case the court must If a second will be destroyed or with held by be satisfied that the destruction was proper and fraud the jury are bound to infer that the second | justifiable or the principle laid down in Armory v. will contained dispositions of property inconsist-Delamirie, 1 Strange, 505, 1 Smith, Lead. Cas. 7th ent with the first, and more, in odium spoliatoris, Am. ed. 636, will be applied, and everytbing will be and that the second will contained a clause ex-presumed against the destroyer which is most unpressly revoking all former wills. Ibid.
favorable to bim if it is consistent with the rest of Where, however, the testator is shown to have the facts which have been either admitted or destroyed the latter will the rule does not apply. proved. Gray v. Haig, 20 Beav. 219. Such destruction likewise revives the former, but As to the substitution of secondary evidence in because it is a direct revocation of the latter. Har such cases, see supra, II. a. wood v. Goodrigbt, 1 Cowp. 87, 91.
And where a brother for the deliberate and sole And wbere tbe destruction alone is shown, the purpose of cutting off investigation destroyed book testator is presumed to bave destroyed it. Betts v. accounts of the firm after suit brought, thereby Jackson, Brown, 6 Wend. 173.
making it impossible to ascertain the amount out There is no basis upon which the presumption of which he had defrauded bis partner, to whom can arise, wherealthough the form of the property as he said he was "bound by the ties of gratitude in question has been changed, neither the value nor for giving him his start in life,” the court said: "No
ment, or even spoliation, of papers is not of case accounting for or explaining the act, conitself a sufficient ground for condemnation in sistent with an honest or justifiable purpose; a prize court. It is undoubtedly a very and it was held that the plaintiff was bound to awakening circumstance, calculated to excite give affirmatively, evidence to show that the the vigilance and justify the suspicions of the act took place under circumstances that recourt. But it is a circumstance open to ex- pelled the inference of fraudulent design. planation, for it may have arisen from acci. These cases apply to a case where a party dedent, necessity, or superior force; and if the stroys or suppresses his own evidence, and party in the first instance fairly and frankly seeks to introduce secondary evidence of the explains it to the satisfaction of the court, it contents of the same, if in its nature docudeprives bim of no right to wbich he is oiber- mentary, or does not produce the witnesses to wise entitled. If, on the other hand, the testify, or causes them to leave the jurisdicspoliation be unexplained, or the explanation tion. But the presumption is not a conclusive appear weak and futile; if the cause labor un- or absolute one, although it is a strong preder beavy suspicions, or there be a vehement sumption; and this is the rule where a party presumption of bad faith or gross prevarica- suppresses or withholds evidence. The foltion,-it is made the ground of a denial of lowing instruction was given in the case of further proof, and condemnation ensues from Thompson v. Thompson, 9 Ind. 323, 68 Am. defects in the evidence, which the party is not Dec. 638: "If the jury believe from the evipermitted to supply.” In the case of Balduin dence that William Thompson, the plaintiff, v. Threlkeld, 8 Ind. App. 312, the court says: burned, or in any way destroyed, any of the "The court sustained an objection of the ap papers of the deceased, James A. Thompson, pellee to proving the contents of certain letters without the knowledge and consent of those testified to by the appellant after he had prac who were interested in the estate of said de. tically admitted that he voluntarily destroyed ceased, it devolves on him to show by proof the letters after he had commenced the suit on other than his own statements what those a note against the Bryants. The court had a papers contained; and on his failure to do so right to deduce from the act of destruction the law raises the presumption against him after the commencement of such suit the in- that they were of the highest value to the deference of a fraudulent design to do away fendant in this suit, and entitles her to a verwith the letters themselves, and upon this dict.” The court said, in substance, while theory the exclusion of the evidence was holding the instruction erroneous, that it is proper.” This is the rule laid down in Blade undoubtedly true that a party who destroys v. Noland, 12 Wend. 173, 27 Am. Dec. 126, the evidence by wbich his claim or title may where a party deliberately destroyed a note be impeached raises a strong presumption before it fell due, and there was nothing in the against the validity of his claim; and if the
fitter case could ever present itself for the rigid determine the general character of a paper de. rule recognized alike in equity and at law, em- stroyed or withheld, or reduce to certatuty wbat is bodied in the maxium, Omnia præsumuntur in equivocal, vague, or uncertain, or complete what odium spoliatoris." Pomeroy v. Benton, 77 Mo. 61. is imperfect, but it does not corroborate whatever
the party prejudiced by the destruction may tesb. The proof.
tify to be the contents. Moffatt v. Moffatt, 10
Bosw. 501. Before one party can charge another as a spolia- Courts of equity will go beyond and even contor he must show that he was himself interested in trary to the rules of law and presume most liberthe document destroyed; and before the destruc- ally in odium spoliatoris. tion will be deemed to be a spoliation he must show The fact of the spoliation may be proved by the that it was done malo animo to injure him. De- answer or oath of the opposite party, so may the lany v. Tenison, 3 Bro. P. C. 659.
contents of a paper; but when it is sought to raise a Furthermore before the character of a spoiler debt against the spoliator there must be some evican be fixed on one who destroys a deed, the pur- i dence beyond the fact of the spoliation. The term port of the instrument must be proved to have some evidence" need not be understood to been what it is surmised to have been. When tbat mean a prima facie case, but slight evidence which is done then the act of the spoiler is deemed to be conduces to prove the charge is sufficient; its equivalent to a confession. M’Reynolds v. M'Cord, weight or credibility is a matter of discretion and 6 Watts, 288.
circumstance. Askew v. Odenheimer, Baldw. 380: As above stated, there must be some evidence Sanson v. Rumsey, 2 Vern. 561; Cookes v. Hellier, "on which the presumption can be reposed,” but “if 1 Ves. Sr. 235; Gartside v. Ratcliff, 1 Ch. Cas. 293. a man destroys a thing that is designed to be evi- Lord Eldon thought the courts might have gone dence against himself, a small matter will supply a little too far in presuming, after proof of spoliait.” Anonymous, 1 Ld. Raym. 731, quoting from tion, that the contents of the tbing spoiled are Lord Holt in B. R. Mich. 10 Wm. III.
wbat they have been alleged to be; but be refuses to Slight evidence of the contents of a written in change the rule. Barker v. Ray, 2 Russ. Ch. 63, 73. strument wilfully destroyed is usually sufficient, A will, being in court and not produced by the for from the fact of the wilful destruction arises plaintiff, the jury may infer that the statements of the presumption that if the truth had appeared, it the defendant concerning its contents are true. would have been against the interest of the de- Sutton y. Devonport, 27 L. J. C. P. N. S. 54. stroyer, and that his conduct is attributable to his This is upon the theory that if the facts are not knowledge of this circumstance. Jones v. Knauss, as alleged the adversary has it in bis power to make 31 N. J. Eq. 609.
it so to appear. Hampden v. Hampden, 3 Bro. P. The mere destruction or withholding of an in-C. 550. strument will not always supply the absence of And where the young Earl of Anglesea was transproof of its contents, or corroborate the evidence ported, sold as a slave, and thereby kept from bis of an interested witness in regard to them. The inheritance for thirty years, the court said: "These presumption arising therefrom may, in some cases, | facts speak more strongly in proof of the plaintiffs'
plaintiff destroyed papers of the estate, and es- that they would show the facts alleged by the pecially receipts for taxes, which are important party giving potice; the only effect of such redocuments, he committed a great wrong, but fusal being that parol evidence of their conyet the presumption against him would not be tents may be given, and, if such secondary of that conclusive character indicated by the evidence be imperfect, vague, and uncertain as instruction. The jury were told in the in. to dates, sums, etc., every intendment and prestruction in the case cited that, if the plaintiff sumption shall be against the party who might destroyed any papers of the deceased, the de. remove all doubt by producing the higher evifendant was entitled to their verdict. The dence. But some general evidence of such court then proceeds to say: "The law of na- parts of their contents as are applicable to the tions, as recognized in continental Europe, un- case must first be given, before any foundation der certain circumstances raises a conclusive is laid for any inference or intendment on acpresumption against the spoliator of papers count of their nonproduction. This doctrine indicating the national character of a vessel. 1 will be applied to another feature of the case at Kent, Com. 157, 158. But even that rule does bar. The following instruction was given in not ordinarily prevail in England and the the case of Bott v. Wood, 56 Miss. 136, 138: “If United States. 1 Greenl. Ev. $ 31; The the jury are satisfied from the evidence that Pizarro, 15 U. S. 2 Wheat. 242, 4 L. ed. 230, Thomas H. Wood fraudulently destroyed the note. This rule has no place in the courts of will now in controversy, testified to by Blan. common law. On proof of the existence of a ton as duly executed by his father, everytbiog paper, the testimony of a party who ought to may be presumed against the destroyer of the have the custody of it, touching its loss, with will in odium spoliatoris (meaning in hatred evidence of diligent search for it, is addressed of the spoliator') and against those claiming to the court. If its loss is established, he is under him.” This instruction was held erallowed to go to the jury with evidence of its roneous, the court remarking that the maxim, contents. But his adversary may prove that Omnia præsumuntur in odium spoliatoris, be bas with beld or destroyed it, and if he sat might be carried too far, and citing Best, Ev. isfactorily establish that point, every pre- ss 412 et seq., as stating that it should be resumption will be indulged against him in ref- garded as merely matter of inference in weigherence to its character. 2 Phillips, Ev. (Coweni ing the evidence in its own nature applicable & H. potes) 293; 3 Phillips, Ev. 1193; Life & !o the subject in dispute. The party destroy. F. Ins. Co. v. Mechanic F. Ins. Co.7 Wend. 31. ing a written instrument must not gain by his The rule is well stated by Sutherland, J., in own wrong, but it is only in reference to the the case last referred to." This rule is that contents of the paper destroyed or withheld the refusal to produce books and papers upon that the maxim can have application. As the notice given does not warrant the presumption contents of the will were proved, the maxim
case than a thousand witnesses." Craig v. Earl | their ponproduction in evidence. Lumley v. WagAnglesea, 17 How. St. Tr. 1430.
ner, 1 DeG. M. & G. 604, 21 L. J. Ch. N. S. 898, 16 In the cases of Sanson v. Rumsey, 2 Vern, 561, and Jur. 871. Eyton v. Eyton, Id. 380, deeds of marriage settle- If the law created an adverse presumption ment were burned, and in Dalston v. Coatsworth, 1 against one who fails or refuses to produce in eviP. Wms. 731, a deed of inheritance was destroyed. dence letters received by him, it would place alThe court in each case decreed that the injured most any single man at the mercy of an artful and party should hold and enjoy, and that the adver- designing woman who would choose to recognize sary should convey. In one case the court impris in her letters sent to him the existence of a maroned the spoliator until he should make a convey-riage contract. However, this would violate the ance; the court admitting that it could not imprison ot ber rule that parties cannot introduce their own him forever, but saying that he could obtain his declarations in evidence. Law v. Woodruff,48 I11.399. release by executing the conveyance.
Where letters which are supposed to have been The evidence that is deducible where there has received are not produced there is at most no more been a spoliation of the "best" evidence (the origi-tban a suspicion raised. It does not constitute nal document) is of course secondary evidence. proof. Carpenter's Estate, 94 Cal. 406. The rule is that, if by fraud a party is deprived of "This doctrine is especially applicable to actions the possession of a written instrument which be- for libel, in which the language used, and the sense longs to bim, secondary evidence of the contents and meaning which properly attach to it, constimay be given in the same manner as in the case of tute the gist of the action." "The Count Joannes" lost documents. Grimes v. Kimball, 3 Allen, 518. v. Bennett, 5 Allen, 169, 81 Am. Dec. 738.
Where a party refused to produce a lease wbich If, however, there has been a destruction of letwas proved to be in her custody, an attorney, who ters, and an action for breach of promise of marhad read it was allowed to give evidence of its con- riage is brought against the receiver, and he satistents. The court presuming it to be against her in- factorily shows that the act of destruction was not terest, inasmuch as she had the power to show it the result of fraudulent intent, the case comes to be otherwise if such were the fact. Young v. within the exception to the rule of law, and secHolmes, 1 Strange, 70.
ondary evidence of the contents is at his instance Exception. There is one exception to the rule admissible. Tobin v. Shaw, 45 Me. 331, 71 Am. Dec. that upon proof of the fact that the party adversely 547. interested destroys or withholds evidence to which
c. The damages. the other party is entitled, a presumption arises in After a spoliation has been established and "some odium spoliatoris enabling the aggressor to make evidence" is introduced, sufficient on which to base secondary proof by the words of his own mouth. It a presumption of damages, it then becomes a is in the case of letters received by the one party question what shall be taken as the measure of from the otber.
damages. On the mere establishing of the fact In such a case the letters are pot presumed to that the rights of a party are either with held or contain whatever the adversary avers they do con. violated the law will presume that damage bas tain, nor is the receiver compelled to account for been done, making it necessary for the adversary