This is an appeal from a judgment entered on a verdict at the Ontario Circuit. The parties are brother and sister. The jury must be held to have found, under the charge of the court, that the plaintiff held a note against the defendant for $175, given to her for money borrowed by him; that more than six years from the time the note became payable had elapsed, and that after that time, and in the year 1874, the defendant requested the plaintiff to show him the note, and she did so on his promise to return the same to the plaintiff after he had looked at it, and thereupon he put the note in the stove and burned it up, without the consent of the plaintiff, and against her will.
The only question pf law in the case arises upon the rule laid *132down by the judge as to the measure of damages. lie charged the jury, in effect, that if they found a verdict for the plaintiff, she was entitled to recover the full face of the note, with interest; that notwithstanding the note was outlawed, it constituted a moral obligation sufficient to form a good consideration for a new note or new promise ; that if the defendant should choose to set up the statute of limitations in a suit on the note, the defense would prevail, but that the defendant, being a wrong-doer, was entitled to no presumptions in his favor. It is true that the general rule in an action for the conversion of a note of a third party is, that the damages are to be measured by the amount apparently due upon the note, but it may be shown that by reason of part payment, or the insolvency of the party obligated to pay the note, or by reason of the existence of some legal defense to the note, the plaintiff has not, in fact, sustained damages to the extent of the face of the note by reason of its conversion. (Booth v. Powers, 56 N. Y., 22.) It is, however, held that where the maker of the note has converted it, in an action brought against him for such conversion, he cannot set up his own insolvency by way of mitigating the damages. The statute of limitations is a good defense if specially pleaded. If not specially pleaded it does not defeat an action on the obligation. The question is, whether it is to be presumed that the defendant would set up that defense to this obligation in behalf of his sister, as was conceded, for borrowed money and no part of which had been paid. Oould such a presumption be indulged as being the course likely to be pursued by a man under such circumstances, where the outlawry of the note was occasioned by the indulgence of his sister?
But could such a presumption be indulged in favor of this defendant ? He was a wrong-doer,'a willful trespasser and spoliator, and is not only deprived of all presumptions in his favor, but all presumptions are against him according to the maxim, “ O'irmia preswn'imiyw' eoni/ra spoliatorem.” It was upon this ground that the judge at the Circuit put his ruling on the question of the measure of damages, and we think it was a proper application of the rule.
Judgment- affirmed.
Present — MulliN, P. J., Taloott and Smith, JJ.Judgment and order affirmed.