Bott v. Wood

Citations

• 56 Miss. 136

Syllabus

<p>1. Evidence. Declarations of deceased, subscribing witness. When admissible.</p> <p>The attestation of an instrument of writing imports nothing as to its character or contents. And when the handwriting of a deceased subscribing witness has been proved, in order to establish the existence of an instrument, and it is sought to rebut the presumption of due execution arising from his name being on the paper, evidence of the declarations of the deceased attesting witness must be confined to the circumstance of the execution and attestation of the instrument, and is inadmissible as to its nature or contents.</p> <p>2. Same. Destruction of written instrument. Presumption against destroyer.</p> <p>The principle of the maxim Omnia prcesum,untur in odium spoliatoris, as applicable to the destruction or suppression of a written instrument, is that such destruction or suppression raises the presumption that the document, if produced, would militate against the party destroying it, and that his conduct is attributable to this fact. Hence, slight evidence of the contents of the instrument, in such a case, will usually be sufficient; but the maxim referred to should not be carried to the extent of dispensing altogether with the necessity of other evidence.</p> <p>3. Same. Omnia procsumuntur in odium spoliatoris. When applicable.</p> <p>It is only in reference to the contents of a paper destroyed or withheld that the maxim Omnia prmsumuntur in odium spoliatoris can have any application; and where there is express and positive evidence of the contents of such paper, there is no place for presumption or inference, and it is improper to resort to this maxim.</p> <p>4. 'Will. Presumption against destroyer thereof. Instruction to jury.</p> <p>Where, upon an issue devisavit vel non, it is sought to establish a will which, it is claimed, has been destroyed, it is error for the court to give an instruction to the jury in which they are told that “ every thing may be presumed against the