All things are presumed against a wrongdoer.
The leading case upon this subject is Armory v. Delamirie, which arose out of a chimney sweep boy having found a jewel set in a socket, which he took to a goldsmith's to know its value. He gave it to the goldsmith's apprentice for that purpose, but the apprentice, under pretence of weighing it, took out the stone and offered the boy three half-pence for it, which the boy refused, insisting upon having the jewel back. The apprentice, however, gave him back the socket only, without the stone, and the boy brought an action against the master for conversion of the jewel. It was held that the boy was entitled to recover for the conversion, and the jewel not being produced, the jury were directed that, unless the defendant produced the jewel, they should presume the strongest against him, and make the value of the best jewel the measure of their damages.
When property has been wrongfully converted, if the value is doubtful, every presumption is raised against the wrongdoer. So, where a diamond necklace, worth 500/., had been stolen, and a portion of the diamonds came into the defendant's possession shortly after the robbery, and the latter gave unsatisfactory accounts as to the mode in which he became possessed of them, and the owner sued and recovered a “verdict for the full amount of the necklace ; it was held that the jury were justified in finding that the whole necklace came into the hands of the defendant. In trover, the value of the goods converted is not limited to their value at the time of conversion, but the jury may give the value at any subsequent time according to the opportunity the plaintiff might have had of selling them to advantage had they not been so detained. So may a plaintiff recover from a defendant not only the value of the goods wrong' fully converted, but all such damages as he may have sustained from their wrongful seizure to the commencement of the suit.
Where a cable was sold with a warranty, and the plaintiff, relying upon the warranty, attached to it a new anchor, and the cable, not answering the warranty, broke, and it and the anchor were lost, the plaintiff was held entitled to recover the value of both cable and anchor. So where the defendant covenanted that if the plaintiff would surrender his lease in order that a new one might be granted to the defendant, he would sink a pit on the land in search of coal, and, in case a marketable vein of coal should be found, would pay the plaintiff 2500l, but the pit was never sunk ; the plaintiff having sued defendant for breach of the covenant, and it being shown that marketable coal would probably have been found had the pit been sunk, it was held that the whole 2,500l, was recoverable.
This presumption is frequently applied to the law of evidence ; as, where an apparently necessary witness is kept back, it will be presumed, that if produced, his evidence would be unfavourable to the party having the power to produce him. But this rule it is said should not be adopted in cases of privileged communications ; as, where at the trial a party's solicitor was called as a witness, and it was objected that the communication proposed to be made was professional and privileged, and so the evidence was not received, the court or jury has no right to treat this as though the party had kept back a material witness and draw an unfavourable inference against the party; for the exclusion of such evidence was for the general benefit of the community.
Branch Max. 80; Armory v. Delamirie, 1 Smith L. C. 301, 5 ed. ; Reid v. Fairbanks, 13 0. B. 729 ; Lookey v. Pye, 8 M. & W. 135 ; Marston v. Do-n-nes, 1 A. & E. 31 ; Greening v. Wilkinson, 1 C. & P. 626 ; Rundle v. Little, 6 Q. B. 178 ; Mortimer v. Oradock, 12 L. J. 166, C. P. ; Lumney v. Wagner, 1 De G. M. & G. 604; Pell v. Shearman, 10 Exch. 767; Borra- daile v. Brunton, 8 Taunt. 53.”) ; Wentworth v. Lloyd, 10 L. T. (X.S.) 767.