OMNIA PRÆSUMUNTUR CONTRA SPOLIATOREM.
(Branch, Max., 5th ed., p. 80.)

Every presumption is made against a wrong-doer.

The following case will serve forcibly to illustrate the above maxim. An account of personal estate having been decreed in equity, the defendant charged the plaintiff with a debt as due to the estate. It was proved that the defendant had wrongfully opened a bundle of papers relating to the account, which had been sealed up and left in his hands. It further appeared that he had altered and displaced the papers, and that it could not be known what papers might have been abstracted. The Court, upon *proof of these facts, disallowed [*726] defendant's whole demand against the plaintiff, although the

Lord Chancellor declared himself satisfied, as indeed the defendant swore, that all the papers entrusted to the defendant had been produced, the ground of this decision being that, in odium spoliatoris omnia præsumuntur.1

If a man by his own tortious act, withhold the evidence by which the nature of his case would be made manifest, every presumption to his disadvantage will be adopted. Where a party has the means in his power of rebutting and explaining the evidence adduced against him, if it does not tend to the truth, the omission to do so furnishes a strong inference against him.3 Thus, where a person who has wrongfully converted property will not produce it, it shall be presumed as against him, to be of the best description. On the other hand, if goods are sold without any express stipulation as to the price, and the vendor prove the delivery of the goods, but give no evidence to fix their value, they are presumed to be worth the lowest price for which goods of that description sell; but if the vendee himself be shown to have suppressed the means of ascertaining the truth, then a contrary presumption arises, and the goods are taken to be of the very best description."

1 Wardour v. Berisford, 1 Vern. 452; S. C., Francis, M., p. 8. Sanson v. Rumsey, 2 Vern. 561, affords another illustration of the maxim. See, also, Dalston v. Coatsworth, 1 P. Wms. 731; Gartside v. Ratcliff, 1 Chanc. Cas. 292.

21 Smith, L. C. 153; 1 Vern. 19. The maxim likewise applies to the spoliation of ship's papers: The Hunter, 1 Dods. Adm. R. 480, 486.

3 3 Stark. Ev. 3d ed. 937.

4 Armory v. Delamirie, 1 Stra. 504; followed in Mortimer v. Cradock, 12 L. J., C. P. 166.

5 Clunnes v. Pezzey, 1 Camp. 8. See Hayden v. Hayward, 1 Camp. 180.

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According to the same principle, if a man withhold an *agreement under which he is chargeable, after a notice to produce, it is presumed, as ́against him, to have been properly stamped, until the contrary appear. Where a public officer, such as a sheriff, produces an instrument, the execution of which he was bound to procure, as against him it is presumed to have been duly executed.2 Moreover, if a person is proved to have defaced or destroyed any written instrument, a presumption arises, that, if the truth had appeared, it would have been against his interest, and that his conduct is attributable to his knowledge of this circumstance, and, accordingly, slight evidence of the contents of the instrument will usually, in such a case, be sufficient. A testator made a will, by which he devised certain premises to A., and afterwards made another will, which was lost, and which the jury found, by special verdict, to have been different from the former will, though they did not find in what particular the difference consisted: the Court decided that the devisee under the first will was entitled to the estate; but Lord Mansfield observed, that, in case the devisee under the first will had destroyed the second, it would have been a good ground for the jury to find a revocation.^

With reference to the class of cases last mentioned, viz., where a deed or other instrument, which ought to be in the possession of a litigant party, is not produced, the general rule is, that the law excludes such evidence of facts, as, from the nature of the thing, supposes still better evidence in the *party's possession or power. And this rule is founded on a sort of presumption that there [*728] is something in the evidence withheld which makes against the party producing it. But, if such evidence is shown to be unattainable, the presumption ceases, and the inferior evidence is admissible. If, therefore, a deed be in possession of the adverse party, and not produced, or if it be lost and destroyed, no matter whether by the adverse party or not, secondary evidence is clearly admissible; and, if the deed be in the possession of a third person, who is not by law compellable to produce it, and he refuses to do so, the result is the

1 Crisp v. Anderson, 1 Stark., N. P. C. 35; E. C. L. R. 2.

2 Scott v. Waitman, 3 Stark., N. P. C. 168; E. C. L. R. 14; Barnes v. Lucas, 1 Ry. & M. 264; E. C. L. R. 21.

31 Phil. Ev., 9th ed. 447, and cases cited, Id. 448, n. (1); Annesley v. Earl of Anglesey, 17 Howell, St. Tr. 1430; 1 Stark. Ev., 3d ed. 409; Roe d. Haldane v. Harvey, 4 Burr. 2484; Lord Trimlestown v. Kemmis, 9 Cla. & F. 775.

4 Harwood v. Goodright, Cowp. 86.

same, for the object is then unattainable by the party offering the secondary evidence.1

The fabrication of evidence, we may further remark, is calculated to raise a presumption against the party who has recourse to such a practice, even stronger than when evidence has been suppressed or withheld.

A considerable degree of caution should, nevertheless, be applied in cases of this latter description, more especially in criminal proceedings,2 for experience shows that a weak but innocent man will sometimes, when appearances are against him, have recourse to falsehood and deception, for the purpose of manifesting his innocence and insuring his safety.3

[*729] *OMNIA PRÆSUMUNTUR SOLENNITER ESSE ACTA.

(Co. Litt. 6, b.)

All acts are presumed to be rightly done.

Where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is, omnia præsumuntur ritè et solenniter esse acta donec probetur in contrarium-everything is presumed to be rightly and duly performed until the contrary is shown." The following may be mentioned as general presumptions of law illustrating this maxim:-That a man acting in a public capacity, is duly authorized so to do; that the records of a court of justice If the head & Finis hection.

I Judgment, Doe d. Gilbert v. Ross, 7 M. & W. 121;(*) Marston v. Downes, 1 Ad. & E. 31; E. C. L. R. 28; Cooke v. Tanswell, 8 Taunt. 450; E. C. L. R. 4.

2 As to the maxim in such cases, see, per Mounteney, B., 17 Howell, St. Tr. 1430; Norden's case, Fost., C. L. 129.

31 Stark. Ev., 3d ed. 564, 565.

4 Co. Litt. 232; Van Omeron v. Dowick, 2 Camp. 44; Doe d. Phillips v. Evans, 1 Cr. & M. 461.(*) Powell v. Sonnett, 3 Bing. 381; E. C. L. R. 11, is a good instance of the application of this maxim. Presumption as to signature, Taylor v. Cook, 8 Price, 653. The Court will not presume any fact so as to vitiate an order of removal: per Denman, C. J., Rex v. Stockton, 5 B. & Ad. 550; E. C. L. R. 27; See Reg. v. St. Paul, Covent Garden, 7 Q. B. 232; E. C. L. R. 53; Reg. v. Justices of Warwickshire, 6 Q. B. 750; E. C. L. R. 51. As to an award, see per Parke, B., 12 M. & W. 251.(*)

5 See per Story, J., delivering judgment, Bank of the United States v. Dandridge, 12 Wheaton, R. (U. S.) 69, 70, where the above maxim is illustrated and explained. 6 Per Lord Ellenborough, C. J., Rex v. Verelst, 3 Camp. 432; Monke v. Butler,

1 Roll. R. 83; M'Gahey v. Alston, 2 M. & W. 206; (*) Faulkner v. Johnson, 11 M. & W. 581;(*) Doe d. Hopley v. Young, 15 L. J., Q. B. 9.

have been correctly made,' according to the rule, res judicata pro veritate accipitur;2 that judges and jurors do nothing causelessly and maliciously;3 that the decisions of a court of competent jurisdiction are well founded, and their judgments regular; and that *facts, without proof of which the verdict could not have been [*730] found, were proved at the trial. So, if the return to a mandamus be certain on the face of it, that is sufficient, and the Court cannot intend facts inconsistent with it, for the purpose of making it bad."

Where the claimant of an ancient barony, which has been long in abeyance, proves that his ancestor sat as a peer in Parliament, and no patent or charter of creation can be discovered, it is now the established rule to hold that the barony was created by writ of summons and sitting, although the original writ of summons or enrolment of it is not produced. In the Hastings Peerage, it was proved that A. B. was summoned by special writ to Parliament in the 49th Hen. 3, but there was no proof that he ever sat, there being no rolls or journals of that period. A. B.'s son and heir, C. D., sat in the Parliament of 18 Edw. 1, but there was no proof that he was summoned to that Parliament, there being no writs of summons or enrolments of them extant from 49 Hen. 3 to 23 Edw. 1. It further appeared that C. D. was summoned to the Parliament of 23 Edw. 1, and to several subsequent Parliaments, but there was no proof that he sat in any of them. Held, that it might be well presumed that C. D. sat in the Parliament of the 18th of Edw. 1, in pursuance of a summons, on the principle that omnia præsumuntur legitime facta donec probetur in contrarium.

The presumption, omnia ritè esse acta, applies also to the acts of private individuals, especially where they are of a *formal character, as writings under seal. In ejectment, therefore,

1 Reed v. Jackson, 1 East, 355.

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2 D. 50, 17, 207; Co. Litt. 103, a; Judgment, Magrath v. Hardy, 4 Bing., N. C. 796; E. C. L. R. 33; per Alderson, B., Hopkins v. Francis, 13 M. & W. 670. 3 Sutton v. Johnstone, 1 T. R. 503.

4 Per Bayley, J., 3 B. & C. 327; E. C. L. R. 10; Reg. v. Brenan, 16 L. J. Q. B. 289. 5 Per Buller, J., Spieres v. Parker, 1 T. R. 145, 146.

Per Buller, J., Rex v. Lyme Regis, 1 Dougl. 159. See Rex v. Nottingham Water-works Company, 6 Ad. & E. 355; E. C. L. R. 33.

7 The Braye Peerage, 6 Cl. & Fin. 757; The Vaux Peerage, 5 Cl. & Fin. 526. The Hastings Peerage, 8 Cl. & Fin. 144.

9 See the argument and judgment in Ricard v. Williams, 7 Wheaton, R. (U. S.) 59; Strother v. Lucas, 12 Peters, R. (U. S.) 452; S. P., 2 Id. 760. As to the proper custody of a deed more than thirty years old, see Doe d. Jacobs v. Phillips, 8 Q. B. 158; E. C. L. R. 55.

upon the assignment of a term to secure an annuity, a proper enrolment of the annuity deed, in pursuance of 17 Geo. 3, c. 26, has been presumed.1 Likewise, upon proof of title, everything which is collateral to the title will be intended, without proof; for although the law requires exactness in the derivation of a title, yet, where that has been proved, all collateral circumstances will be presumed in favour of right; and, wherever the possession of a party is rightful, the general rule of presumption is applied to invest that possession with a legal title.3 On the same principle, it is a general rule, that, where a person is required to do an act, the not doing of which would make him guilty of a criminal neglect of duty, it shall be intended that he has duly performed it, unless the contrary be shown-stabit præsumptio donec probetur in contrarium; negative evidence rebuts this presumption, that all has been duly performed.5 Thus, on an indictment for the non-repair of a road, the [*732] presumption, that an award, in relief of the defendants, was duly made according to the directions of an enclosure act, may be rebutted by proof of repairs subsequently done to the road by the defendants; for, if the fact had been in accordance with such presumption, they ought not to have continued to repair."

It is, however, important to observe, in addition to the above general remarks, that, in inferior courts and proceedings by magistrates, the maxim, omnia præsumuntur ritè esse acta, does not apply to give jurisdiction." Where, for instance, the examination of a soldier, taken before two magistrates, was tendered in evidence to

1 Doe d. Griffin v. Mason, 3 Camp. 7; Talbot v. Hodson, 7 Taunt. 251; E. C L. R. 2; 1 Phil. Ev., 9th ed. 451; and the examples of the above maxim, Id. n. (2); Beresford v. Newton, 1 C., M. & R. 901;(*) Doe d. Shelton v. Shelton, 3 Ad. & E. 265 ; E. C. L. R. 30. As to presumption of evidence of probate, see Doe d. Woodhouse v. Powell, 15 L. J., Q. B. 189.

23 Stark. Ev. 3d ed. 936; 2 Wms. Saund., 5th ed. 42, n. (7).

3 Per Lord Ellenborough, C. J., 8 East, 263. See Simpson, app., Wilkinson, resp., 8 Scott, N. R. 814; Doe d. Dand v. Thompson, 7 Q. B. 897; E. C. L. R. 53.

4 Wing. Max. 712; Hob. R. 297; 3 Bla. Com. 371; per Sir W. Scott, 1 Dods. Adm. R. 266; Davenport v. Mason, 15 Tyng, R. (U. S.) 2d. ed. 87. "It seems reasonable that presumption which is not founded on the basis of certainty, should yield to evidence which is the test of truth." Id.

5 Per Lord Ellenborough, C. J. Rex v. Haslingfield, 2 M. & S. 561; E. C. L. R. 28; recognising, Williams v. East India Company, 3 East, 192.

6 Rex v. Haslingfield, 2 M. & S. 558; E. C. L. R. 28; Manning v. Eastern Counties Railway Company, 12 M. & W. 237 ;(*) Doe d. Nanney v. Gore, 2 M. & W. 321 ;(*) Heysham v. Forster, 5 Man. & Ry. 277.

7 Per Holroyd, J., 7 B. & C. 790; E. C. L. R. 14.