but, in answer to questions put to him on cross-examination, he said, in reference to a lot of ore averaging $48.33 per ton by car sample, that, if he had owned them and sent them to mill, he should have hoped for a return of 65 per cent of the car sample assay, and should have expected nothing better. The proper deduction from this answer may be stated as follows: 65 per cent of $48.33, the car sample assay, is $31.41, and this is 81.7 per cent of $38.33, the corresponding battery assay. So it appears that Mr. Lyman would hope to get 81.7 per cent of the battery sample. He does not say that he would regard it as evidence of fraudulent or dishonest milling if he got only 75 per cent, and, according to his actual experience of what he deems correct milling, 73 per cent of the battery sample has been returned.

Finally, it may be said that if the defendants were held for the return which Mr. Lyman would hope to get, i. e., 65 per cent of the car sample assay, the judgment on that basis would be more than $350,000 less than that which was actually rendered.

It is claimed that there is another serious error in the estimate of losses by milling, arising out of the disregard by the superior court of the discount on silver bullion. It is doubtful, however, if the evidence in relation to this matter is sufficiently clear to demonstrate the error alleged. The claim is, that in all the car sample assays the basis upon which the court estimated the bullion contents of the ores in question-the silver was reckoned at $1.2929 per ounce; that is to say, at its standard value according to the number of grains of pure silver (371.25) in a coin dollar, and that in computing the loss the court has taken the same standard of value for the missing silver bullion, and awarded a money judgment for the resulting amount, when the actual market value of the bullion was at least 20 per cent below the standard value. If this is so, it was certainly a very serious error, amounting, according to my estimate, to at least $100,000, and probably to a good deal more; for there can be no doubt that a judgment

for the conversion of silver bullion, payable in coin, should be based upon the coin or market value of the bullion, and not upon an arbitrary standard value above its market value.

I do not find, however, any direct evidence that the car sample assays were made upon the basis of $1.2929 per ounce of silver. The evidence, it is true, does show that the battery or pulp sample assays were based upon that assumed value, and since the car sample assays were made by the same assayer, and at the same time, it is perhaps a fair inference that they were computed on the same basis. But, however, this may be, a decision of the point is not necessary here. There must be a new trial of that issue for other reasons, and it is sufficient to indicate our views as to the proper allowance to be made, in case it shall appear that the ore assays were based upon an assumed value of silver bullion different from its market value.

The true method of determining the loss sustained by imperfect or fraudulent milling is to ascertain the quantity of gold and silver actually contained in the ore, as nearly as practicable, next to ascertain what percentage of the bullion contents should be returned by fair and honest milling, and the difference between this amount and the actual return is the actual damage. To make these computations it is obvious that the standard of value must be the same in the assays of ore and in the assays of bullion returned, and it makes no difference whether this is $1,2929 or any other figure, provided that it is the standard used by the assayer of the ores, and is uniform. By this means alone can the true difference between the proper return and the actual return be correctly determined. When this has been done, in order to determine the amount of the damages for the purpose of the judgment, the money value of the difference must be obtained by allowing for the discount on the silver-whatever it was.

I find that, roughly speaking, the Hale & Norcross ores, according to the car sample assays, contained about

$2 of silver to $1 in gold. (This is my own estimate, based upon a comparison of a large number of assays taken at random, and possibly erroneous.) The mint returns of the bullion extracted from these ores show an average disparity considerably less. This is accounted for in great part, by the fact very clearly shown from the evidence, that the mint return was based, not upon a valuation of $1.2929 per ounce of pure silver, but upon the price which the mint was paying for silver, which was considerably below that rate. This indicates that the amount of silver bullion returned by the mills was underestimated, as compared with the bullion in the ores, for the silver was valued at less per ounce in the bullion than in the ores. It ought to have been estimated on the same basis, and the difference, when ascertained, should have been reduced to its money value.

Since the necessary consequence of these errors in the findings is that there must be a new trial as to the question of damages from imperfect milling, it does not seem worth while to discuss the evidence offered to corroborate the general charge of fraud in the milling-by which I mean the evidence intended to show how it was possible to debase the battery samples, or to run the value of the ore into the tailings by improper amalgamation, or to abstract the amalgam, or purloin the bullion. All these things have their place, as tending more or less to corroborate other evidence of improper milling, and are entitled to such weight as the trial judge may think belongs to them, when considered in connection with the more direct evidence of the assay value of the ores, the bullion returns made, and the percentage that ought to be returned with correct milling. There are one or two matters, however, connected with the milling which require to be noticed.

Exception is taken to the finding to the effect that the slimes and concentrates resulting from the working of these ores were the property of the Hale & Norcross company, on the ground that all the evidence shows that, according to the universal practice and understanding,

the slimes and concentrates become the property of a custom mill. This finding, like that in regard to the mining of worthless ores, is not made the basis of any award of damages, and rests upon similar grounds. The court being of the opinion that 75 per cent of the car sample assay was a proper return of bullion, necessarily concluded that a large part of the value of these ores was improperly run into the tailings, and, consequently, that the tailings did not become the property of the mill. And this was a correct conclusion from the premises; for it is only when the milling has been reasonably efficient that the tailings can rightfully be claimed by the mill, according to the custom. But the court gave no separate or additional damages on account of the value of the slimes and concentrates, because their value was included in the 75 per cent of the car sample assays with which the defendants were charged.

A claim is made on behalf of respondent that the superior court was justified by the doctrine omnia præsumunter contra spoliatorem, in assuming that the Hale & Norcross ores were of the value shown by the the car sample assays, and, in support of this contention, they cite the celebrated ring case of Armory v. Delamire, 1 Strange, 505. That was a case in which the defendant, a jeweler, had taken a ring, removed the jewel, and kept it wrongfully from the plaintiff, and the jury were directed to make the value of the best jewel that would fit the setting the measure of their verdict, unless the defendant would produce the jewel and show it to be of less value. The meaning and the limitations of the doctrine of this case are stated in the notes appended to the report, in 1 Smith's Leading Cases, Hare and Wallace's edition, 589: "It signifies that, if a man by his own tortious act withhold the evidence by which the nature of his case would be manifested, every presumption to his disadvantage will be adopted. .. When the nature

of a wrongful act is such that it not only inflicts an injury, but takes away the means of proving the nature and extent of the loss, the law will aid a recovery

against the wrongdoer, and supply the deficiency of proof caused by his misconduct, by making every reasonable intendment against him, and in favor of the party injured. A man who willfully places the property of others in a situation where it cannot be recovered, or its true amount or value ascertained, by mixing it with his own, or in any other manner, will consequently be compelled to bear all the inconvenience of the uncertainty or conclusion which he has produced, even to the extent of surrendering the whole, if the parts cannot be discriminated, or responding in damages for the highest value at which the property in question can reasonably be estimated.

"The presumption contra spoliatorem also arise when a party to a suit or controversy willfully destroys or suppresses, by wrongful or dishonest means, a deed, will, or other instrument which belongs to, or would be admissible if called for by, the opposite party, and will justify a court or jury in drawing the most unfavorable inference, consistent with reason and probability, as to the nature and effect of the evidence which they have thus been precluded from using and examining as a means for the discovery of truth. ...

"The extent and force of the presumption must evidently vary with the nature of the wrong and the circumstances under which it was committed, and it will not, perhaps, even when most hostile, be an absolute and insuperable bar....

"The presumption arising from the wrongful destruction or suppression of evidence will not, however, justify a judgment or decree without evidence, nor the substitution of conjecture or allegation for proof; and its legiti mate effect is confined to rendering evidence admissible which could not be received under ordinary circumstances, and the deduction of every inference from the evidence actually given in favor of the injured party and against the spoliator. . .

"The better opinion would seem to be that the mere fact of withdrawing or refusing to produce an instru