The “Henry L. Phillips” v. The Queen

cipal ground of defence, is whether the deed of Elizabeth was executed by the Dean and Canons, and if not, whether it had any binding force as against them. If I thought that such execution of the deed was THE material it would be difficult, in the state of the evidence before me as to the existence of this deed, to hold that it was not executed by the Girouard j. Dean and Canons. It is plain that they had the original in their possession, executed at least by the Queen, and that they made a copy of it in their books. Evidence is always to be taken most strongly as against the persons who keep back a document, and the circumstance that the body keeping it back is a corporation does not in the slightest degree affect this principle, although it exonerates the present members from blame in that respect.

It is true, it is urged, that this deed is lost, and that nothing of wilful suppression is to be presumed against the predecessors of the present corporation, and yet the circumstances undoubtedly require an explanation, which they cannot now receive. This decision is in accordance with Crisp v. Andersen (1), where it was held that if a' man withhold an agreement under which he is chargeable it is presumed to have been properly stamped. But suppose the Dean and Canons of Windsor had established that in fact their predecessors had refused to accept the trust created by the deed of Queen Elizabeth, can it be supposed that the Master of the Rolls would have applied the presumption against this evidence ? The presumption would have been removed just as it was in Crotother v. Solomons (2), and affirming Crisp v. Anderson (1), the court held, however, that the presumption of the document being regularly stamped as against the spoliator, was rebutted by the evidence that it had been inspected a short time before the trial and that it was not stamped.

To these decisions a few may be added from old digests:-Petersdorff's Abridgement (4):

Presumptions are not proofs; they stand instead of proof until the contrary is established.

(3) L. R. 5 H.L. 624.

(4) Vo. evidence, p. 170. Comyn's Digest (1)

T.R. 201; Id. p. 430:

Tidd's Practice :

See also 3 Blackstone (3); Smith, L. C. (4); Broom, Legal Maxims (5) ; Taylor on Evidence (6) ; Starkie on Evidence (7); Best on Evidence (8); Phillips on Evidence (9); Stephen (10).

Great stress has been laid upon the cost of the works as compared with the original estimate. Explanations are not. wanted for this result, which Mr. Justice Taschereau has incidentally noticed. To my mind this fact creates no presumption against the appellant, and is of no importance in the appreciation of the evidence.

I have not alluded to the memorandum book of Doheny.

Mr. Justice Taschereau has done full .justice to this branch of the case.

I agree with him that his evidence is utterly unreliable.

Taking this view of the law and facts of the case, I have come to the conclusion that under both the Quebec Code and the English law the appellant cannot be regarded as a spoliator, and that even if he could he has fully rebutted the presumption resulting from that alleged fact by express and positive evidence to the contrary.

The appeal should be allowed with costs qu and judgment entered for the full amount of the pay- Girouard J. rolls rendered to the respondent, less the charges made for the services of the clerks and time-keepers, the whole as directed by Mr. Justice Taschereau.

is Canada (1) in favour of the Crown.

The appeal was dismissed with costs.

PUDSEY v DOMINION ATLANTIC RAILWAY CO. APPEAL from a decision of the Supreme Court Nova Scotia in favour of the defendant company. After hearing counsel the court, without reserving judgment, ordered a new trial on the ground that the jury had not properly answered some of the questions submitted.

In other respects the judgment appealed from was affirmed.

EASTMURE v. CANADA ACCIDENT INS. CO. APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment of the Divisional Court in favour of the company.