Daniell's Chancery Practice, 927, et seq. It was at his option whether he would use it or not, and if he refrained from doing so the other party could make no use of it, and could not even read the cross-examination of the witnesses if the examination in chief was not put in. See Wilson v. Calvert, 5 Sim. 194; and It is evident, therefore, that had Lord Denman and the other learned Judges whose dicta will be relied on, been aware what the practice really was, their conclusion would have been the very reverse, as the principle upon which the judgments in Brickell v. Hulse and Gardner v. Moult are founded is strictly applicable to depositions such as these, Grant v. Jackson, Peake's N. P. 268; Pritchard v. Bagshaw, 11 C. B. 459; and were also referred to in the course of the argument. Grove, Q.C., Giffard, and G. B. Hughes, in support of the rule. The evidence ought not to have been admitted. There is no case in which a deposition made in a cause has been used as evidence in another cause, except against the party who made it. It is the act or conduct of the party alone that can make another person's statement evidence against such party. From the judgment of Coleridge, J., in Brickell v. Hulse, (as reported in 2 N. & P. 429,) it is plain that the ratio decidendi in that case was, that the sheriff had made the statement, which was there admitted in evidence, his own by adoption. So too in Gardner v. Moult, 10 Ad. & El. 464, and in Chambers v. Bernasconi, 1 C. M. & R. 347, the evidence was admissible by reason of the personal act and knowledge of the party. It is not within the scope of counsel's authority to bind his client by the selection which he may make of depositions for use in a cause. If the depositions put in by counsel are binding against the party upon all future occasions, so also is every statement made by counsel in a cause: the selection of depositions, and the language of counsel are alike matters within the counsel's discretion. Taylor on Evidence, 639, sect. 709. Suppose a witness makes a deposition damaging to Atkins v. Humphreys, 1 M. & R. 523; 23 Nov. 1863. Cur. ade, cult The learned Judges having differed in opinion, the following judgments were now delivered :— BLACKBURN, J.-This was an action of replevin for taking plaintiff's sheep on a mountain Tarren Ys-gwyddgwyn. The defendant avowed for damage feasant on the locus in quo averred to be held by the defendant as tenant under William Meyrick, who had the fee. On this avowry issue was joined. On the trial, before my Brother Wilde, the question raised was, whether the locus in quo was part of the freehold of Mr. Meyrick, who defended the action in the name of his tenant, or part of the freehold of the Marquis of Bute, who is lord of the manor within which the locus in quo lies, and who was the real plaintiff, though not so named on the record. The counsel for the Marquis of Bute tendered in evidence the answer of William Meyrick (the landlord of the defendant on the record, and who was now actually defending the action in his tenant's name,) in a suit in Chancery, in which one Lewis Edwards was plaintiff and William Meyrick defendant, and also two depositions taken in the suit. The answer was ad See, also, the obiter dicta of Pollock, C.B., and Martin, mitted to be evidence; and the bill was read without B., in Blackstone v. Wilson, 26 L. J. Ex. 230. There is a fallacy in the argument that because a party must be supposed to put forward his witness as the witness of truth, therefore such witness's deposition is binding upon the party who proffers it. objection as explanatory of the answer and showing the nature of the suit. From these it appeared that Lewis Edwards sought to set aside the purchase from him by Meyrick in 1825 of the property of which i was now alleged that the locus in quo formed part, en the ground of Meyrick having been his solicitor, and having taken advantage of that situation. It was alleged in the bill that full value was not given for the estate. Two depositions in that suit taken in 1842 were offered in evidence and were objected to. It was admitted that the depositions were taken upon the old system in Chancery, by Commissioners sworn to secresy. It was proved that publication passed a month before the hearing of the case, and that after publication both parties had access to the depositions; that, according to the then practice in Chancery, a party was not bound to read at the hearing, or use the evidence of any witness unless he pleased; and it was also proved that Meyrick's counsel t the hearing of the cause of Edwards v. Meyrick, read and used as evidence for him the two depositions now tendered on behalf of the Marquis of Bute against Meyrick, as being defendant in substance in the present action. There was no privity whatever between either the Marquis of Bute or the plaintiff on the record, and Lewis Edwards, the plaintiff in the Chancery suit; but it was contended that the use of these depositions on behalf of Meyrick was an admission of their truth, and that they thus became admissible as against him for any one. The depositions were received in evidence and read, subject to the objection. The first was a deposition of a witness, Francis Morgan, who at the time he gave the evidence was tenant of the farm under Meyrick. The object of his testimony was to show that the farm was of little value, and in the course of it he mentioned the acreage of the farm, which was such as to show that he did not include in his holding the extensive mountain traet forming the locus in quo. The other deposition was that of Henry Harries, who had formerly been the tenant of the same farm, but who, at the time he made the deposition, had no interest in the estate in any way. His evidence, though much less explicit than Morgan's, might have led the jury to draw the conclusion that when he occupied the farm he did not hold the locus in quo as part of it. The verdict passed for the plaintiff. A rule nisi for a new trial, on the ground of the improper reception of evidence, was obtained, which was argued in the course of Easter Term before my Lord, my brother Crompton, and myself. The argument was entirely confined to the question whether the deposition of Henry Harries was properly received in evidence or not; and rightly so, for if it was improperly received, the defendant was entitled to a new trial, and it was therefore unnecessary to consider whether there was any special ground on which the deposition of Francis Morgan could have been received. It was not contended that Harries' deposition could be received as being a declaration against his interest, or on any other ground whatever, except that it had been used on behalf of Meyrick as evidence in the suit of Edwards v. Meyrick, the effect of which was, it was contended, to make it evidence as against Meyrick, for every person as an admission by conduct of the truth of the statement contained in the deposition. The defendant's counsel in the argument said, that there was no case in which the deposition of a witness, whether taken in Chancery under a commission or in a suit at law, had ever been admitted as evidence for a person who was neither party nor privy to that suit, that depositions in Chancery had been rejected in the time of Charles the Second in Rushworth v. The Countess of Pembroke, and again by Tindal, C.J., in Atkyns v. Humphreys; and that, during that long interval, it had always been considered to be the law that deposi tions could not be given in evidence against any one who was not a party or privy to the suit, and could not be evidence for any one who was not a party or privy to the suit, for reasons most forcibly given in Gilbert on Evidence, p. 56. Gilbert, C.B., there "A man shall never take advantage of a deposi tion that was not a party to the suit; for, if he cannot be prejudiced by the deposition he shall never receive any advantage from it: for this would create the greatest mischief that can be; for then a man that never was a party to the Chancery proceedings might use against his adversary all the depositions which made against him, and he, in his own advantage, could not use the depositions which made for him; because the other party, not being concerned in the suit, had not the liberty to cross-examine; and, therefore, cannot be encountered with any deposition out of the same." says, All this was not denied by the learned counsel for the plaintiff, but they said it had application only to depositions used in the original suit against a party, and sought to be made evidence against him, because taken upon oath, and subject to cross-examination, and that this written statement was admissible, not because it was on oath and subject to cross-examination, but because it had been used and read by Meyrick's counsel, which it was said, made it evidence against him, to the same extent, and on the same principle as if there had been evidence that Meyrick himself said "I have read Harries' deposition, it is every word of it correct." For this, reliance was placed on the case of Brickell v. Hulse, and Gardner v. Moult. In Brickell v. Hulse, the question at the trial appears to have been, whether there was legal evidence that White, who had seized the goods of the plaintiff, was the bailiff of the defendant, the high sheriff. connect White with the defendant, the plaintiff proved that in the vacation the defendant applied to a Judge at Chambers, to extend the time for returning the writ, in order that application might be made in Term time, under the Interpleader Act, and that the time was extended accordingly; and that on the application at Chambers, the defendant had put in an affidavit of James White, now produced, and from which it appeared that White had seized the goods as officer to the defendant, and had been in possession of them. White was in Court at the time of the trial. The Το evidence was objected to, but received. A new trial was moved for, but the rule was refused. Lord Denman gave as his reason that there was nothing to distinguish the affidavit thus used from a statement made by the party himself. He proceeds to distinguish it from the case of a deposition in an Equity suit, on a ground as he says, "founded on the nature of the proceedings in Equity. The party who uses such depositions does not know beforehand what they are. If he did, such cases would stand on the same footing as the present. He can only refer to what he expects will be produced. It is like the case of a witness at nisi prius, whose evidence does not bind the party calling." The reason for this distinction is (as will be presently shown) a mistaken one. Still it appears clear, that Lord Denman did not suppose that a deposition could be used as evidence against the party producing it in another suit. In Gardner v. Moult, a deposition, made in bankruptcy, on which a fiat was issued, was admitted in evidence against the defendants to prove an act of bankruptcy, on proof that their solicitor had sent the person who made the deposition to make it. It was held, that the evidence was admissible, Lord Denman saying, "No doubt a party in a case is not bound by all that his witnesses say at nisi prius, or in their depositions in Chancery, but the defendants are bound by the particular statement which their agent was sent to make." And Patteson, J., says, "The distinction pointed out in Brickell v. Hulse, is a sound one, and I do not intend to depart from it: and it is not material by what name the document is called. It is in substance an affidavit within the meaning of the distinction there laid down, though called a deposition. Hay therein makes a statement of facts which the petitioning creditors had previously ascertained from him that he was able to make. He says nothing but what they knew he would say, and was subject to no crossexamination." Here, again, a distinction is recognised and insisted upon between evidence called by the party to a former suit, which it is conceded would not be available for a stranger, and an affidavit or thing equivalent to an affidavit, which is admissible. The authority of those two decisions was questioned by a learned Irish Judge, Crampton, J., in White v. Dowling, but was recognised in the same case by Perrin, J. In Pritchard v. Bagshaw they were assumed by the Court, as well as by the very able counsel who was then arguing, to be binding authorities; and in the considered judgment of the Court of Exchequer in Boileau v. Rutlin, they are recognised, and they are explained on a principle which seems satisfactory, and which it is important for the decision of this case to keep in mind. Parke, B., in speaking of Brickell v. Hulse, and Gardner v. Moult, says, "In the first of the above-mentioned cases, it may be presumed that the defendant prepared the affidavit which he exhibited as true; at all events, that he exhibited it for the purpose of proving a certain fact. In the second, it must be taken that he sent the servant to prove a particular act of bankruptcy; for if he sent him as a witness to give evidence generally as to any act to which the Commissioner might examine, there would be no reason for holding that his answers would be evidence against the party, any more than there would be for receiving the evidence of a witness examined by a party in an ordinary trial at Law, as an implied admission by him, which it is conceded can never be done. In all these cases it is argued that the party, by using the evidence of a witness, does not make any admission that the answers of that witness are true, so as to make them evidence against him afterwards." On the argument before us the counsel for the plaintiff succeeded in showing that Lord Denman, in Brickell v. Hulse, had misapprehended the course of practice under the old system in Chancery; for that though it was true that till publication the deposition of the witness was kept secret, yet that between the publication and the hearing of the cause the depositions were not secret, so that the counsel at the time of the hearing either refrained from using them, or used them with full knowledge of their contents. And they argued, founding themselves on what was said by Lord Denman, that there is a distinction between the evidence of a witness examined vivá voce, the full effect of whose testimony must always be uncertain till his cross-examination is over, and a deposition of a witness examined under the old system in Chancery, or under a commission before the Master at Common Law, whose evidence is completely known before the counsel puts it in. But though Lord Denman there put the distinction on a mistaken ground, there is a distinction recognised in that case; and it seems to me that the true distinction is that pointed out in Boileau v. Rullin, and which appears to have been in the mind of Patteson, J., in Gardner v. Moult, namely, the distinction between the statement of a particular fact through the means of an affidavit or otherwise, and the production of evidence in the cause, and that the distinction does not depend on the question whether the evidence is written or viva voce. Where evidence is tendered, a party through his counsel asserts that the testimony which the witness has given or is ex pected to give, is legal evidence from which an infer ence favourable to his client may be drawn ; but he does not assert that it is all accurate. Indeed, as was pointed out in the course of the argument, it is quite conceivable that ninety-nine assertions out of the hundred in the evidence may be unfavourable to the cause of the party producing them, but that he trusts to convince the tribunal that they are either imma terial or inaccurate, and uses the deposition solely to furnish evidence of the hundredth; and this may be safely done if the whole evidence before the Court is taken together. But if the using such a deposition is to be considered as asserting the accuracy of the whole of it, so as to make it evidence against the party at all times, and in all suits, and for all purposes, counsel must consider its possible bearing on all the affairs of their client, and the client cannot safely entrust his cause to counsel without instructing him fully, not only as to the cause in question, but also as to all his affairs. We all know that in practice counsel never are so instructed, and never do, when considering whether they will use a deposition or not, consider its bearing on aught but the case in hand. And the extent to which the doctrine may be carried is very startling. In this very case, according to the argument of the plaintiff's counsel, the Marquis of Bute must be taken to have admitted that all the statements in the answer in Edwards v. Meyrick, are true, and in any future suit by the Marquis of Bute, that answer may be used as evidence against him by any person, and as evidence of every statement in it. It is clear that this would produce a most unjust result, unless the whole course of the present cause be explained, so as to show that all that the counsel meant to prove was that Tarren Ysgwyddgwyn was not parcel of Mr. Meyrick's estate. But such an explanation is at nisi prius impracticable. It seems, therefore, that if the deposition were admitted, the mischief so forcibly pointed out by Gilbert, C.B., would inevitably result. It would "create the greatest mischief that can be," for the other side might use against the Marquis of Bute all the depositions that made against him, and he in his own advantage could not use the depositions that made for him. If I am right in the principle which I have been expounding, it applies to the present case. The deposition was one which the party must use as an entire deposition, making it all evidence, so that he equally asserts the accuracy of every statement in it, and either the whole deposition is made evidence for a stranger, or none of it is. The relevancy of the part of the deposition relied on in the issue in Chancery goes to the weight of the evidence, if it is admissible, but does not in my mind affect its almissibility. For the reasons which I have given, it seems to me that the evidence in the present case is not admissible, on the principle that using the evidence of a witness in a suit, whether that evidence be viva voce or reduced to writing, is not to be considered as an admission of the accuracy of the statements in that evidence so as to make those statements evidence against him for strangers; and as it is admitted that there is no case as yet in which such evidence has been received, I think we ought not now to sanction its receipt, and consequently that the rule ought to be made absolute for a new trial. CROMPTON, J.-The question in these cases was, whether my brother Wilde was right in receiving in vidence certain depositions which had been used by the defendant in a previous suit in Chancery. It appeared that the depositions in question had been used by the real defendant in this action in a previous suit in Chancery instituted by a stranger to all the par ties in the present action, and that they had been so used by the defendant for the purpose of proving against the plaintiff in that Chancery suit the small extent of the acreage of the farm in question, which it was the object of the plaintiff to make out in the present action, so that both the defendant in the suit with the stranger and the plaintiff in the present action, sought to use the same depositions for the same purpose. It appeared, also, that the depositions in the Chancery suit had been published some time before the hearing of the suit: that they had been in the hands of the advisers of the defendant, whose counsel read in evidence at the hearing such only of the depositions as he thought fit to read. It was shown that this was the old system of giving depositions in evidence on the hearing of a cause in Chancery, and that it has been a mistake to suppose that the parties reading depositions in evidence at the hearing of a Chancery suit were not aware of the exact written evidence they were about to offer, so as to be in the situation of a party at nisi prius who cannot tell what may be the exact evidence of a witness he calls to give his testimony. The depositions taken in judicial proceedings when a party has had an opportunity of cross-examining are in many cases admissible as secondary evidence against such party or his privy. It was not contended that the depositions in question were admissible within the class of cases in which such depositions are so admissible, the present plaintiff being an entire stranger to the parties in the original suit: but it was contended that they were admissible as primary evidence, as admissions of conduct within the class of cases where a party has by using a document or otherwise, admitted the truth of a matter therein stated, just as much (except in degree and weight of evidence) as if he had expressly declared by word of mouth that it was true. The admissibility of that evidence does not depend on the regularity of judicial proceedings or on the parties in the suit being or not being parties in the former suit, or there having been an opportunity of cross-examination, or upon primary evidence being shown to be unattainable; but it would be primary evidence as a statement made by the person, just as if the present defendant had expressly stated that the acreage in question had been of smaller dimensions. Many cases were cited before us in which depositions in former suits had been rejected, but in these cases they were always rejected as depositions on the ground of the absence of the requisite conditions under which depositions as such were receivable and in all the cases, except one at nisi prius (Atkins v. Humphrey, 1 Moo. & Rob. 523), they would seem not to have been offered under circumstances which would have raised the question of their being receivable as admissions under the doctrine as to the admissions of documents by conduct to which I have alluded. In that case also, the question was treated as a question of the admissibility of a document as a deposition. The doctrine now in question was not adverted to, but it will be seen that the text-writers question, whether the document would not have been receivable as an admission, except for the mistaken notion as to the parties not knowing what the deponent would prove, which I shall afterwards allude to, and on which ground alone they suggest that the rejection might be supported. See the query made as to this decision in Starkie on Evidence, 312 (3rd ed.), note (a), referring to the observations of Mr. Phillips on the same case in the 8th edition of his treatise on Evidence, p. 371. Mr. Taylor, in the 2nd edition of his work on Evidence, p. 397, remarks, that "it might perhaps appear at first sight, that these depositions having been read by the party himself against whom they were offered in evidence, would, in spite of a want of mutuality, be receivable as admissions, and the correctness of this decision has consequently been questioned by more than one able writer on evidence; but the Court of Queen's Bench has given the true answer to the argument by pointing out that a party who prior to the 12th of November, 1852, read depositions in Equity did not know beforehand what they were, and, therefore, was no further bound by their contents than he would have been by the viva voce testimony of a witness whom he might have called at nisi prius." I was entirely satisfied in the course of the argument that the Courts and Judges who have relied on the supposed want of knowledge of the contents of depositions read by the parties tendering them in evidence at the hearing of the cause in Equity, proceeded on a mistake of practice, the depositions being in the hands of a party after publication, and it being for him to select what portion of the deposition he chooses to read, and this was proved at the trial to have been the case in the suit in Equity in which the depositions in question were read. That documents admitted by a party or used in evidence by him are generally receivable as admissions has been established by many modern cases, and though, in the discussion of such cases, it has been assumed that depositions in Chancery used by the party against whom they might be offered would not be evidence, it has been laid down that they would be so admissible, except for the mistaken notion above referred to, that their contents are unknown to the party like the evidence of witnesses he is calling at nisi prius. In Brickell v. Hulse, Lord Denman says, "It is very important that this subject should not be left subject to doubt. There can, I think, be no question but that a statement which a party produces on his own behalf, whether on oath or not, becomes evidence against him. There is nothing to distinguish it from the statement made by the party himself. Rudworth v. Countess of Pembroke seems opposed to this view, for there the defendant was not permitted to use any of the depositions made in an Equity suit wherein the plaintiff had been defendant. That decision, however, was founded on the nature of the proceedings in Equity. A party who uses such depositions does not know beforehand what they are, if he did such cases would stand on the same footing as the present. He can only refer to what he expects will be produced. It is like the case of a witness called at nisi prius whose evidence does not bind the party calling him. It is quite different from a case where a party produces as part of his own statement an affidavit of which he knows the contents." Patteson, J., in the same case lays it down positively, that when a party for any purpose produces a document containing certain state. ments, "such statements are as against him evidence of the facts which they contain." Coleridge, J., remarks that the defendant "arms himself with a statement which he makes his own and uses," and adds, "that is clearly evidence against him afterwards of the facts in the statement. The statement may be of more or less avail." The same learned Judge afterwards, in the course of his judgment in the same case says, "As to the depositions in Equity, they stand on the same footing as the viva voce evidence given in a Court of Law. A man does not make all that is said by a witness whom he calls evidence against himself hereafter. In Chancery the deposi tions are sealed up from the time of their being taken until publication passes. That is like the case of a party calling a witness whose evidence he does not hear till it is given. The present is the case of a party using a statement which he has seen before he uses it, and which is neither the more nor the less admissible for being made on oath." There could hardly be a stronger recognition of the principle contended for by the plaintiff than the above judgment of those three learned Judges. In the subsequent case of Gardner v. Moult, Patte son, J., distinctly recognises the above doctrine, saying, "The distinction pointed out in Brickell v. Hulse is a sound one; and I do not intend to depart from it. But it is not material by what name the document is called, it is in substance an affidavit within the meaning of the distinction there laid down, though called a deposition." It would certainly be a strange distine tion, as pointed out by Mr. James in his very able argument, if it were to be held that a deposition read as this was read, is not evidence, but that an affi davit when the Court is proceeding on affidavits is evidence against the party using it. It must always be remembered that it is not the obtaining the affidavit or deposition, but the making use of it as true, which is the ground on which such evidence is supposed to be receivable. These cases are commented upon and rightly explained by the Court of Exchequer in the case of Boileau v. Rutlin, as instances of admissions by con duct. Parke, B., said, in delivering the judgment of the Court, "In the first of the above-mentioned cases, Brickell v. Hulse, it may be presumed that the party prepared the affidavit which he afterwards exhibited as true, at all events, that he exhibited it for the |