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Evidence - From: 1849 To: 1899

This page lists 33 cases, and was prepared on 21 May 2019.

 
Palmer v Trower (1852) 8 Exch 247
1852


Evidence
Evidence is not admissible to contradict answers given by a witness to questions put in cross-examination which concern collateral matters, ie matters which go merely to credit but which are otherwise irrelevant to the issues in the case.
1 Citers


 
Regina v The Inhabitants Of The Liberty Of Saffron Hill, Hatton Garden And Ely Rents [1852] EngR 1019; (1852) 1 El and Bl 93; (1852) 118 ER 371
17 Nov 1852


Evidence

[ Commonlii ]
 
Gray v Haig and Son (1855) 20 Beav 219
1855


Evidence
Gray was the agent for Haig & Son, selling whisky on commission. On the termination of the agency a dispute arose as to the amount of the commission due and an account was ordered. Gray had destroyed his books, which were essential to the taking of the account, after the dispute had arisen. Held: "In a case before me this year, one partner, several years before the institution of the suit, and upwards of twenty years after the closing of the partnership business, and when the accounts had been settled between him and his partners by arbitration, and never afterwards opened or disputed, had destroyed the books which contained the accounts of that partnership, I treated lightly the circumstance of that destruction, and did not suffer it to prejudice his case. But the case is very different when the transactions to which they relate are recent, where the accounts arising from them have not been finally adjusted, or the balance ascertained or paid, and still more when that destruction takes place by the person who has actually filed a bill to have the accounts taken of those very transactions to which these books relate. In such a case some very cogent reason must be given to satisfy the Court that the destruction was proper or justifiable, and, in the absence of any such reason, which is the fact here, I am compelled to act on the principle laid down in the well-known case of Armory v Delamirie , and presume, as against the person who destroyed the evidence, every thing most unfavourable to him, which is consistent with the rest of the facts, which are either admitted or proved." and "But in all cases of contradictory evidence, whether between a witness and a Defendant, or between two witnesses who give evidence in direct contradiction to each other, with regard to a matter equally within the knowledge and cognizance of both, it is the duty of the judicial tribunal to search for facts which may corroborate or invalidate the testimony of either witness. In this case there were books containing the account of the transactions, which would have afforded clear and distinct evidence to enable the Court to judge which of the two was to be believed. This evidence Mr. Gray has himself removed, and removed, as I consider proved by his own evidence, after the contest relating to these accounts had arisen between himself and Haig & Son. He must suffer the necessary consequence of the absence of that evidence so occasioned; and I consider myself bound to believe that these books, if now forthcoming, would prove the truth of the statements contained in Rikey's evidence."
1 Cites

1 Citers


 
Boyle v Wisman (1855) 10 Exch 647
1855

Alderson B
Evidence
After parties were enabled to testify in most civil cases by the 1851, the court recognised that the failure of one of them to deny a fact which it is in his power to deny gives colour to the evidence against him.
Evidence Act 1851
1 Citers


 
The Right Hon Lord Waterpark v Joshua R Fennell [1859] EngR 880; (1859) 7 HLC 650; (1859) 11 ER 259
21 Jul 1859


Land, Evidence
Where parcels are described in old documents by words of a general nature, or of doubtful import, evidence of usage is proper to be received to show what they comprehend.
[ Commonlii ]
 
Regina v The Overseers of Hinckley [1863] EngR 452; (1863) 3 B and S 885; (1863) 122 ER 331
25 Apr 1863


Evidence

[ Commonlii ]
 
Plaice v Allcock [1866] EngR 14; (1866) 4 F and F 1074; (1866) 176 ER 913
1866


Evidence

[ Commonlii ]
 
Regina v Exall (1866) 4 F and F 922
1866

Pollock CB
Evidence
Circumstantial evidence might be compared to a rope comprised of several cords: "One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion: but the whole taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of."
1 Citers


 
Traviss v Hargreave [1866] EngR 47; (1866) 4 F and F 1078; (1866) 176 ER 915
1866


Evidence

[ Commonlii ]

 
 Regina v Exall And Others; 1866 - [1866] EngR 22; (1866) 4 F and F 922; (1866) 176 ER 850
 
Regina v Reason (1872) 12 Cox 228
1872


Evidence

1 Citers


 
Wilson v Northampton and Banbury Junction Railway Co (1872) LR 14 Eq 477; (1874) LR 9 Ch App 279
1872

Lord Selborne LC
Legal Professions, Evidence, Equity
Lord Selborne LC said: "It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any contract entered into between man and man . . may lead to litigation before the contract is completed. Any correspondence passing between the date of the contract which afterwards becomes the subject of litigation and the litigation itself is, in my opinion, on principle, within the privilege extended to the non-production of communications between solicitors and clients . . it is absolutely essential to the interest of mankind that a person should be free to consult his solicitor upon anything which arises out of a contract which may lead to litigation; that the communications should be perfectly free, so that the client may write to the solicitor, and the solicitor to the client, without the slightest apprehension that those communications will be produced if litigation should afterwards arise on the subject to which the correspondence relates."
Lord Selborne LC spoke about the discretion available under the law of equity, saying that equity sets out to "do more perfect and complete justice" than would be the result of leaving the parties to their remedies at common law.
1 Citers


 
McQueen v Great Western Rly Co (1875) LR 10 QB 569
1875
CA
Cockburn C J
Evidence
If a prima facie case is made out capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence then the inference fairly arises, as a matter of inference for the jury and not a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it was adduced it would not displace the prima facie case. But that always pre-supposes that a prima facie case has been established and unless we can see our way clearly to the conclusion that a prima facie case has been established, the omission to call witness who might have been called on the part of the defendants amounts to nothing.
1 Citers


 
Mackenzie v The British Linen Co [1879] SLR 17 - 241
20 Dec 1879
SCS

Evidence
Process - Proof - Commission
Evidence (Scotland) Act 1866
[ Bailii ]

 
 Metropolitan Asylum District Managers v Hill; HL 1881 - (1881) 6 App Cas 193 HL; (1882) 47 LT 29

 
 Kitcat v Sharp; 1882 - (1882) 48 LT 64; (1882) 52 LJ CH 134; [1882] 31 WR 227
 
Arbroath v North Eastern Railway (1883) II QBD 440
1883


Evidence, Torts - Other
In a case alleging malicious prosecution, the burden of proving absence of reasonable and probable cause is on the Plaintiff, who thus takes on the notoriously difficult task of proving a negative
1 Citers


 
The Palermo (1883) 9 PD 6
1883


Evidence, Legal Professions
A copy of an original document which is not itself privileged is privileged only if (a) the copy came into existence for the purpose of litigation, and (b) the original document is not and has not at any time been in the control of the party claiming privilege.
1 Citers


 
Lyell v Kennedy (No 3) (1884) 27 ChD 1
1884

Cotton LJ, Bowen LJ
Evidence, Legal Professions
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant's possession barred the plaintiff's claim. This in turn raised issues as to the intestate's pedigree and as to the heirship to her estate. In the course of preparing the defendant's defence in the action, his solicitors had obtained copies of and extracts from certain entries in public registers, together with photographs of certain tombstones and houses. By his affidavit of documents the defendant objected to produce these documents on the ground firstly that they had come into existence for the purpose of the litigation, and secondly: "that for the purpose of his defence . . he had through his solicitors to obtain the assistance of counsel, and for that purpose to make searches and inquiries, and obtain copies of entries in registers, public records, and other original documents, not in his possession, and that his solicitors employed confidential clerks, and confidential agents, and his solicitors and their clerks and agents in the course of such employment and for the purposes aforesaid, made and obtained the copies, and procured the photographs". The plaintiff sought disclosure, contending that the documents in question were unprivileged. Opposing disclosure, the defendant argued that: ".... the discretion exercised by the solicitor .... in the choice of a series of extracts and copies, records and registers, and the omission of others, prevents it being a mere servile copying of public documents, which would not be privileged, but that it represents the work of the solicitor's mind, and might be a means of showing to the Plaintiff the idea entertained by him of his client's case." Held: As to privilege: "What ought we to do here? Here is a litigation about pedigree and the heirship to a lady who died many years ago; and it is sworn by the Defendant that for the purpose of defending himself against various claimants he has made inquiries, and that he has obtained every one of those documents for the purpose of protecting himself, and that he has got them, not himself personally, but that his solicitors have got them, for the purpose of his defence, for the purpose of instructing his counsel, and for the purpose of conducting this litigation on his behalf. Now no case has been quoted where documents obtained under such circumstances have been ordered to be produced. In my opinion it is contrary to the principle on which the court acts with regard to protection on the ground of professional privilege that we should make an order for their production; they were obtained for the purpose of his defence, and it would be to deprive a solicitor of the means afforded for enabling him to fully investigate a case for the purpose of instructing counsel if we required documents, although perhaps publici juris in themselves, to be produced, because the very fact of the solicitor having got copies of certain burial certificates and other records, and having made copies of the inscriptions on certain tombstones, and obtained photographs of certain houses, might shew what his view was as to the case of his client as regards the claim made against him. There is no case, as I have said before, which is exactly in point, but Walsham v. Stainton, though different in its circumstances, somewhat illustrates the principle to which I am referring, because there, when that case came before Vice-Chancellor Wood, he protected the records and extracts from books which had been made by an accountant for the defendants, who had collected together a number of entries, because the extracts, when put together, shewed the view which he and the solicitor of the defendants took of the particular fraud which they were there investigating, and the Judge considered that to order the defendants to produce them would be not only giving production to the parties who were asking for production, but giving them a clue to the advice which had been given by the solicitor, and giving them the benefit of the professional opinion which had been formed by the solicitor and those who had acted in a professional capacity for the defendant. In my opinion, therefore, in this case, without saying what ought to be done if there were any different case made before the Court with regard to documents like these, it would not be in accordance with the rules which have guided this Court in deciding what is professional privilege in regard to the production of documents, to order their production."
1 Citers


 
Chadwick v Bowman (1886) 16 QBD 561
1886
CA
Mathew J, Denman J
Evidence, Legal Professions
The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations "really" came into existence for the purposes of the action. "I think that danger would follow if the privilege against inspection were made to cover such a case as this. It does not appear to me that these documents really came into existence for the purposes of the rule upon which the defendant's counsel relied."
1 Citers


 
Regina v Gavin (1888) (15 Cox 656)
1888

AL Smith, J
Criminal Practice, Evidence
The court excluded a statement made to a constable, who questioned his prisoner in a way that amounted to cross-examination. A constable has no right to ask questions without expressly saying that the answers cannot be relevant evidence.
1 Citers


 
Brown v Eastern and Midlands Railway Co (1889) 22 QBD 391
1889


Evidence

1 Citers



 
 Brown v Hawkes; CA 1891 - [1891] 1 QB 718

 
 Collins v London General Omnibus Company; 1893 - (1893) 68 LT NS 831

 
 Regina v Male; 1893 - (1893) 17 Cox 689

 
 Regina v Brackenbury; 1893 - (1893) 17 Cox 628

 
 Regina v Thompson; 1893 - (1893) 2 QB 12
 
North Australian Territory Co v Goldsborough, Mort and Co [1893] 2 Ch 381
1893
CA
Lord Esher MR, Lindley LJ, Cotton LJ
Evidence
The court considered the propriety of the cross examination of a witness of the statements of others. The plaintiff company in liquidation, sought rescission of a contract for the purchase of land. In the course of the liquidation and after the commencement of the action certain persons were examined under section 115 of the 1862 Act. Their depositions were then taken. A commission subsequently issued in the action for the examination of witnesses abroad, and one of the persons who had been examined under s 115 was examined under the commission on behalf of the Defendants. During this cross-examination on behalf of the Plaintiffs he was asked as to the truth of certain of his answers given in the examination under section 115, and the answers were read to him from the depositions. He said that the statements contained in them were correct. He was also cross-examined as to certain answers given by other persons who had been examined under sect.115, and those answers were read to him. The Defendants sought to inspect and copy those depositions used in the cross-examination. Held: The defendants were not entitled to the inspection sought.
Lord Esher MR said that: “answers given in an examination under sect.115 never can be used as evidence or as proof, except for the purpose of contradicting a witness; they are not taken as evidence in an action, but for the purpose of obtaining information to enable the company or its liquidator to decide as to the propriety of bringing or continuing an action”. As to the depositions: “are in the nature of information, and there is no injustice in the fact that the person conducting a cause is in possession of information of which the other side is not.”
Lindley LJ said: "It is said that they are entitled because these depositions ought to have been scheduled in the Plaintiffs’ affidavit of documents as documents in their possession relating to matters in dispute in the action; but, if they had been scheduled, privilege would as a matter of course have been claimed for them, and the Defendants would never have seen them; and it would not be fair to the Plaintiffs if we were to treat these depositions as documents in their possession unprotected by a claim of privilege."
Companies Act 1862 115
1 Citers



 
 Makin v Attorney-General for New South Wales; PC 12-Dec-1893 - [1894] AC 57; [1893] UKPC 56
 
Rogers v Hawken [1894] 67 LJ QB 526
1894
QBD
Russell, LCJ and Mathew J
Criminal Practice, Evidence
(Year unknown) In a case of the admissibility of questions put before arrest, the Divisional Court, (judges not prone to lean against a prisoner) Held: The statement was admissible and observed that "R. v. Male must not be taken as laying down that a statement of the accused to a police constable without threat or inducement is not admissible. There is no rule of law excluding statements made in such circumstances".
1 Cites

1 Citers


 
Regina v Goddard (1896) 60 JP 491
1896

Cave, J
Criminal Practice, Evidence
The court admitted a statement made by a prisoner in custody to a constable who had cross-examined him.
1 Cites

1 Citers


 
Regina v Histed (1898) 19 Cox 16
1898

Hawkins, J.
Criminal Practice, Evidence
The court excluded the answers of a prisoner in custody, on the authority of R. v. Gavin, saying that the constable was entrapping the prisoner and trying by a trick to set a broken-down case on its legs again.
1 Cites

1 Citers


 
Moore v Ransome's Dock Committee (1898) 14 TLR 539
1898


Evidence

1 Citers


 
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