The effect of spoliation was first presented to the English courts in cases involving contracts under seal which were enforceable because of their outward form.1 The theory that it was the outward form, rather than the intention of the parties, which was to govern, was applied by the courts of law logically; and it was held that the destruction, mutilation or alteration of a sealed instrument operated as a discharge thereof, although the obligee was without fault.2 This principle was applied to cases in which the seal was mutilated without any human agency,3 as where the seal was eaten by rats.4
The only limitation which the English courts seem to have imposed upon this doctrine was that the instrument must have been thus mutilated when the plea of non est factum was interposed. A mutilation of the seal after the plea of non est factum was interposed and before trial,5 as where the seal was eaten by mice after issue was joined and before trial,6 had no legal effect, and the instrument could be enforced as it was originally executed.
The rule that spoliation by a third party operated as a discharge of the instrument, was repeated in a later case,7 in which seals were added to an unsealed guaranty while in the hands of the promisee, although the defendant did not allege that the plaintiff knew of such alteration or was a party thereto. This result was justified on the theory that such alteration would have been impossible if it had not been for the fraud or carelessness of the promisee.8 This rigid rule of the English law survived long enough to cause a similar holding in the United States.9
1 See 111164.
2 Markham v. Gonaston, Cro. Eliz. 62G; Pigot's Case, 11 Coke 26b; Bayly v. Garford, March 125; Seaton v. Hen-son, 2 Lev. 220, 2 Show. 28.
See also, Sheppard's Touchstone of Common Assurances, 68, and Nichols v. Haywood, 1 Dyer 59a.
3 Bayly v. Garford, March 125. 4 Bayly v. Garford, March 125.
5 Nichols v. Haywood, 1 Dyer 59a; Michaell's Case, Owen 8.
6 Nichols v. Haywood, 1 Dyer 59a.
7 Davidson v. Cooper, 13 M. & W. 343.
8 "After much doubt, we think the judgment right. The strictness of the rule on this subject, as laid down in Pigot's case, can only be explained on the principle that a party who has the custody of an instrument made for his benefit is bound to preserve it in its original state. It is highly important for preserving the purity of legal instruments that this principle should he borne in mind, and the rule adhered to. The party who may suffer has no right to complain, since there can not be any alteration except through fraud, or laches, on his part. To say that Pigot's case has been overruled is a mistake; on the contrary, it has been extended, the authorities establishing, as common sense requires, that the alteration of an unsealed paper will vitiate it. Upon the doubt whether this instrument is altered, because it remains exactly as it was when signed, but only something is added near to the signatures of the defendants, we may observe that that addition gives a different legal character to the writing, and would, if made with the consent of all interested, completely change the nature of the relation towards each other of the parties to it, and the remedies upon it. The observation that a deed is not made by sealing, but by delivery, does not appear to touch the argument, for no addition, erasure or interlineation, after execution, makes the actual instrument different in legal effect from what it was; the original document may be perfectly visible through the attempt to disguise it, but a different appearance is produced. The truth can not be known from inspection, but would require to be established by evidence', and this through some default of the person to whose care it was consigned, and who would be possessed of a superior legal remedy if the altered writing could be imposed on the contractor as genuine. We are, therefore, of opinion, both upon principle and authority, that this judgment must be affirmed." Davidson v. Cooper, 13 M. & W. 343.
In the meantime, however, even the English courts had held that an alteration of an award under seal, made by the umpire after notice of such award and before delivery, was inoperative, either to modify the original award or to render it invalid.10