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on his behalf. See

Cur, ado, tuli


hearing, and the person on whose behalf a deposition Suppose a witness makes a deposition damaging to had been taken remained as much dominus of that the plaintiff, but still more damaging to the defendeposition as if it had been an ordinary affidavit made dant, the plaintiff's counsel may, in his discretion,

think fit to put it in ; but it cannot be said that Daniell’s Chancery Practice, 927, et seq.

he puts it forward as true in all respects. Or, take It was at his option whether he would use it or the case where a prisoner makes a statement before not, and if he refrained from doing so the other the magistrates, admitting that he was present when party could make no use of it, and could not even the crime was committed, but declaring that he read the cross-examination of the witnesses if the took no part in its commission. At the trial he examination in chief was not put in. See

endeavours to prore an alibi. If the prosecuting Wilson v. Calvert, 5 Sim. 194 ; and

counsel puts in the statement in order to contradict Smith v. Biggs, 5 Sim. 391.

the alibi, can it be said that he puts it in as true ! It is evident, therefore, that had Lord Denman and Again, the party on whose behalf the evidence is prof. the other learned Judges whose dicta will be relied on, ferred may be lunatic, or beyond the seas, or an infant, been aware what the practice really was, their conclu- yet his estate might be bound for ever by conduet sion would have been the very reverse, as the principle which was in no sense his act or conduct. The Court

, upon which the judgments in Brickell v. Hulse and by sanctioning the principle contended for by the plain. Gardner v. Moult are founded is strictly applicable to tiff, would introduce a new method of perpetnating depositions such as these,

testimony, and would affirm that the counsel in a Grant v. Jackson, Peake's N. P. 268;

cause, by putting in a statement with reference to an Com. Dig. “Chancery,” S;

estate, is able to bind that estate for all time, long Pritchard v. Bagshaw, 11 C. B. 459; and after all those who might correct or explain the admis“ White v. Dowling, 8 Ir. L. R. 128,

sion have died or disappeared. were also referred to in the course of the argument. They also cited,

Atkins v. Humphreys, 1 M. & R. 623 ; Grove, Q.C., Giffard, and G. B. Hughes, in support

Doe v. Earl of Derby, 1 Ad. & El. 783 ; of the rule.

Gilbert on Evidence, p. 55. The evidence ought not to have been admitted. There is no case in which a deposition made in a cause 23 Nov. 1863. has been used as evidence in another cause, except The learned Judges having differed in opinion, the against the party who made it. It is the act or con- following judgments were now delivered :duct of the party alone that can make another person's statement evidence against such party. From the BLACKBURN, J.—This was an action of replevin for judgment of Coleridge, J., in Brickell v. Hulse, (as taking plaintiff's sheep on a mountain Tarren Ys-gwyddreported in 2 N. & P. 429,) it is plain that the ratio gwyn. The defendant avowed for damage feasant on decidendi in that case was, that the sheriff had made the locus in quo averred to be held by the defendant as the statement, which was there admitted in evidence, tenant under William Meyrick, who had the fee. On his own by adoption. So too in

this avowry issue was joined. On the trial, before my Gardner v. Moull, 10 Ad. & El. 464,

Brother Wilde, the question raised was, whether the and in

locus in quo was part of the freehold of Mr. Meyriek, Chambers v. Bernasconi, 1 C. M. & R. 347, who defended the action in the name of his tenant, or the evidence was admissible by reason of the personal part of the freehold of the Marquis of Bute, who is act and knowledge of the party.

lord of the manor within which the locus in quo lies, It is not within the scope of counsel's authority to and who was the real plaintiff

, though not so named bind his client by the selection which he may make on the record. of depositions for use in a cause. If the depositions The counsel for the Marquis of Bute tendered in put in by counsel are binding against the party upon evidence the answer of William Meyrick (the landlord all future occasions, so also is every statement made by of the defendant on the record, and who was not counsel in a cause : the selection of depositions, and actually defending the action in his tenant's name,) in the language of counsel are alike matters within the a suit in Chancery, in which one Lewis Edwards was counsel's discretion,

plaintiff and William Meyrick defendant, and also two Taylor on Evidence, 639, sect. 709.

depositions taken in the suit. The answer was adSee, also, the obiter dicta of Pollock, C. B., and Martin, mitted to be evidence ; and the bill was read without B., in

objection as explanatory of the answer and showing Blackstone v. Wilson, 26 L. J. Ex. 230.

the nature of the suit. From these it appeared that There is a fallacy in the argument that because a Lewis Edwards sought to set aside the purchase from party must be supposed to put forward his witness him by Meyrick in 1825 of the property of which i as the witness of truth, therefore such witness's depo- was now alleged that the locus in quo formed part, or sition is binding upon the party who proffers it. the ground of Meyrick having been his solicitor, and

having taken advantage of that situation. It was person as an admission by conduct of the truth of the alleged in the bill that full value was not given for the statement contained in the deposition. estate. Two depositions in that suit taken in 1842 The defendant's counsel in the argument said, that were offered in evidence and were objected to.

there was no case in which the deposition of a witness, It was admitted that the depositions were taken upon whether taken in Chancery under a commission or in a the old system in Chancery, by Commissioners sworn suit at law, had ever been admitted as evidence for a to secresy. It was proved that publication passed a person who was neither party nor privy to that suit, month before the hearing of the case, and that after that depositions in Chancery had been rejected in the publication both parties had access to the depositions ; time of Charles the Second in Rushworth v. The Countess that, according to the then practice in Chancery, a of Pembroke, and again by Tindal, C.J., in Atkyns v. party was not bound to read at the hearing, or use Humphreys ; and that, during that long interval, it the evidence of any witness unless he pleased ; and had always been considered to be the law that deposiit was also proved that Meyrick's counsel t the tions could not be given in evidence against any one hearing of the cause of Edwards v. Meyrick, read who was not a party or privy to the suit, and could and used as evidence for him the two depositions not be evidence for any one who was not a party or now tendered on behalf of the Marquis of Bute against privy to the suit, for reasons most forcibly given in Meyrick, as being defendant in substance in the pre-Gilbert on Evidence, p. 56. Gilbert, C.B., there sent action.

says, “A man shall never take advantage of a deposiThere was no privity whatever between either the tion that was not a party to the suit ; for, if he cannot Marquis of Bute or the plaintiff on the record, and be prejudiced by the deposition he shall never receive Lewis Edwards, the plaintiff in the Chancery suit; any advantage from it: for this would create the but it was contended that the use of these depositions greatest mischief that can be ; for then a man that on behalf of Meyrick was an admission of their truth, never was a party to the Chancery proceedings might and that they thus became admissible as against him use against his adversary all the depositions which for any one.

made against him, and he, in his own advantage, The depositions were received in evidence and read, could not use the depositions which made for him ; subject to the objection. The first was a deposition of because the other party, not being concerned in the a witness, Francis Morgan, who at the time he gave suit, had not the liberty to cross-examine ; and, therethe evidence was tenant of the farm under Meyrick. fore, cannot be encountered with any deposition out of The object of his testimony was to show that the farm the same." Fas of little value, and in the course of it he mentioned All this was not denied by the learned counsel for the acreage of the farm, which was such as to show the plaintiff, but they said it had application only to that he did not include in his holding the extensive depositions used in the original suit against a party, mountain traet forming the locus in quo. The other and sought to be made evidence against him, because deposition was that of Henry Harries, who had taken upon oath, and subject to cross-examination, formerly been the tenant of the same farm, but who, at and that this written statement was admissible, not the time he made the deposition, had no interest in because it was on oath and subject to cross-examinathe estate in any way. His evidence, though much tion, but because it had been used and read by less explicit than Morgan's, might have led the jury to Meyrick's counsel, which it was said, made it evidence draw the conclusion that when he occupied the farm against him, to the same extent, and on the same prinhe did not hold the locus in quo as part of it. The ciple as if there had been evidence that Meyrick himself Ferdict passed for the plaintiff. A rule nisi for a new said "I have read Harries' deposition, it is every word trial, on the ground of the iniproper reception of of it correct.” For this, reliance was placed on the

was obtained, which was argued in the case of Brickell v. Hulse, and Gardner v. Moult. In course of Easter Term before my Lord, my brother Brickell v. Hulse, the question at the trial appears Crompton, and myself. The argument was entirely to have been, whether there was legal evidence that confined to the question whether the deposition of White, who had seized the goods of the plaintiff, was Henry Harries was properly received in evidence or the bailiff of the defendant, the high sheriff. To not; and rightly so, for if it was improperly received, connect White with the defendant, the plaintiff proved the defendant was entitled to a new trial, and it was that in the vacation the defendant applied to a Judge therefore unnecessary to consider whether there was at Chambers, to extend the time for returning the any special ground on which the deposition of Francis writ, in order that application might be made in Term Morgan could have been received. It was not con- time, under the Interpleader Act, and that the time tended that Harries' deposition could be received as was extended accordingly; and that on the application being a declaration against his interest, or on any at Chambers, the defendant had put in an affidavit other ground whatever, except that it had been used of James White, now produced, and from which it on behalf of Meyrick as evidence in the suit of Edwards appeared that White had seized the goods as officer 1. Meyrick, the effect of which was, it was contended, to the defendant, and had been in possession of them. to make it evidence as against Meyrick, for every White was in Court at the time of the trial. The


evidence was objected to, but received. A new trial must be taken that he sent the servant to prove a parwas moved for, but the rule was refused. Lord | ticular act of bankruptcy ; for if he sent him as a Denman gave as his reason that there was nothing witness to give evidence generally as to any act to to distinguish the affidavit thus used from a state- which the Commissioner might examine, there would ment made by the party himself. He proceeds to be no reason for holding that his answers would be distinguish it from the case of a deposition in an evidence against the party, any more than there would Equity suit, on a ground as he says, “founded on the be for receiving the evidence a witness examined nature of the proceedings in Equity. The party who a party in an ordinary trial at Law, as an implied aduses such depositions does not know beforehand what mission by him, which it is conceded can never be they are.

If he did, such cases would stand on the done. In all these cases it is argued that the party, sanie footing as the present. He can only refer to by using the evidence of a witness, does not make any what he expects will be produced. It is like the case

admission that the answers of that witness are true, of a witness at nisi prius, whose evidence does not so as to make them evidence against him afterwards." bind the party calling.” The reason for this distinc. On the argument before us the counsel for the plaintiff tion is (as will be presently shown) a mistaken one. succeeded in showing that Lord Denman, in Brickell v. Still it appears clear, that Lord Denman did not Hulse, had misapprehended the course of practice suppose that a deposition could be used as evidence under the old system in Chancery ; for that though it against the party producing it in another suit. In was true that till publication the deposition of the Gardner v. Moult, a deposition, made in bankruptcy, witness was kept secret, yet that between the publicaon which a fiat was issued, was admitted in evidence tion and the hearing of the cause the depositions were against the defendants to prove an act of bankruptcy, not secret, so that the counsel at the time of the on proof that their solicitor had sent the person who hearing either refrained from using them, or used made the deposition to make it. It was held, that them with full knowledge of their contents. And the evidence was admissible, Lord Denman saying, they argued, founding themselves on what was said by “No doubt a party in a case is not bound by all that Lord Denman, that there is a distinction between the his witnesses say at nisi prius, or in their depositions evidence of a witness examined viva voce, the full effect in Chancery, but the defendants are bound by the par. of whose testimony must always be uncertain till his ticular statement which their agent was sent to make.” cross-examination is over, and a deposition of a witness And Patteson, J., says, “The distinction pointed out examined under the old system in Chancery, or under in Brickell v. Hulse, is a sound one, and I do not a commission before the Master at Common Law, intend to depart from it: and it is not material by whose evidence is completely known before the counsel what name the document is called. It is in substance puts it in. But though Lord Denman there put the an affidavit within the meaning of the distinction distinction on a mistaken ground, there is a distinction there laid down, though called a deposition. Hay recognised in that case ; and it seems to me that the therein makes a statement of facts which the peti- true distinction is that pointed out in Boileau v; tioning creditors had previously ascertained from him Rutlin, and which appears to have been in the mind that he was able to make. He says nothing but what of Patteson, J., in Gardner v. Moult, namely, the disthey knew he would say, and was subject to no cross- tinction between the statement of a particular fact examination.” Here, again, a distinction is recognised through the means of an affidavit or otherwise, and and insisted upon between evidence called by the the production of evidence in the cause, and that the party to a former suit, which it is conceded would not distinction does not depend on the question whether be available for a stranger, and an affidavit or thing the evidence is written or viva voce.

Where evidence equivalent to an affidavit, which is admissible.

is tendered, a party through his counsel asserts that The authority of those two decisions was questioned the testimony which the witness has given or is exby a learned Irish Judge, Crampton, J., in White v. pected to give, is legal evidence from which an infer Dowling, but was recognised in the same case by ence favourable to his client may be drawn ; but he Perrin, J. In Pritchard v. Bagshaw they were assumed does not assert that it is all accurate. Indeed, as was by the Court, as well as by the very able counsel who pointed out in the course of the argument, it is quite was then arguing, to be binding authorities ; and in the conceivable that ninety-nine assertions out of the considered judgment of the Court of Exchequer in hundred in the evidence may be unfavourable to the Boileau v. Rutlin, they are recognised, and they are cause of the party producing them, but that he trusts explained on a principle which seems satisfactory, to convince the tribunal that they are either imma. and which it is important for the decision of this case terial or inaccurate, and uses the deposition solely to to keep in mind. Parke, B., in speaking of Brickell furnish evidence of the hundredth ; and this may be v. Hulse, and Gardner v. Moult, says, “In the first of safely done if the whole evidence before the Court the above-mentioned cases, it may be presumed that is taken together. But if the using such a deposition the defendant prepared the affidavit which he exhibited is to be considered as asserting the accuracy of the as true; at all events, that he exhibited it for the whole of it, so as to make it evidence against the party purpose of proving a certain fact. In the second, it at all times, and in all suits, and for all purposes,

counsel must consider its possible bearing on all the ties in the present action, and that they had been so affairs of their client, and the client cannot safely used by the defendant for the purpose of proving entrust his cause to counsel without instructing him against the plaintiff in that Chancery suit the small fully, not only as to the cause in question, but also as extent of the acreage of the farm in question, which it to all his affairs. We all know that in practice was the object of the plaintiff to make out in the precounsel never are so instructed, and never do, when sent action, so that both the defendant in the suit with considering whether they will use a deposition or not, the stranger and the plaintiff in the present action, consider its bearing on aught but the case in hand. sought to use the same depositions for the same

And the extent to which the doctrine may be car- purpose. ried is very startling. In this very case, according to It appeared, also, that the depositions in the the argument of the plaintiff's counsel, the Marquis of Chancery suit had been published some time before Bute must be taken to have admitted that all the the hearing of the suit : that they had been in the statements in the answer in Edwards v. Meyrick, are hands of the advisers of the defendant, whose counsel true, and in any future suit by the Marquis of Bute, read in evidence at the hearing such only of the depothat answer may be used as evidence against him by sitions as he thought fit to read. It was shown that any person, and as evidence of every statement in it. this was the old system of giving depositions in eviIt is clear that this would produce a most unjust result, dence on the hearing of a cause in Chancery, and unless the whole course of the present cause be ex- that it has been a mistake to suppose that the parties plained, so as to show that all that the counsel meant to reading depositions in evidence at the hearing of a prove was that Tarren Ysgwyddgwyn was not parcel Chancery suit were not aware of the exact written of Mr. Meyrick's estate. But such an explanation is evidence they were about to offer, so as to be in the at nisi prius impracticable. It seems, therefore, that situation of a party at nisi prius who cannot tell if the deposition were admitted, the mischief so forci. what may be the exact evidence of a witness he calls bly pointed out by Gilbert, C.B., would inevitably to give his testimony. The depositions taken in result. It would create the greatest mischief judicial proceedings when a party has had an opporthat can be," for the other side might use against the tunity of cross-examining are in many cases admissible Marquis of Bute all the depositions that made against as secondary evidence against such party or his privy. him, and he in his own advantage could not use the It was not contended that the depositions in question depositions that made for him. If I am right in the were admissible within the class of cases in which principle which I have been expounding, it applies to such depositions are so admissible, the present plaintiff the present case. The deposition was one which the being an entire stranger to the parties in the original party must use as an entire deposition, making it all suit : but it was contended that they were admissible evidence, so that he equally asserts the accuracy of as primary evidence, as admissions of conduct within every statement in it, and either the whole deposition the class of cases where a party has by using a docuis made evidence for a stranger, or none of it is. The ment or otherwise, admitted the truth of a matter relevancy of the part of the deposition relied on in the therein stated, just as much (except in degree and issue in Chancery goes to the weight of the evidence, weight of evidence) as if he had expressly declared by if it is admissible, but does not in my mind affect its word of mouth that it was true. The admissibility of almissibility.

that evidence does not depend on the regularity of For the reasons which I have given, it seems to me judicial proceedings or on the parties in the suit being that the evidence in the present case is not admissible, or not being parties in the former suit, or there having on the principle that using the evidence of a witness been an opportunity of cross-examination, or upon in a suit

, whether that evidence be viva voce or reduced primary evidence being shown to be unattainable ; to writing, is not to be considered as an admission of but it would be primary evidence as a statement made the

accuracy of the statements in that evidence so as by the person, just as if the present defendant had to make those statements evidence against him for expressly stated that the acreage in question had strangers; and as it is admitted that

is no case been of smaller dimensions. Many cases were cited as yet in which such evidence has been received, I before us in which depositions in former suits think we ought not now to sanction its receipt, and had been rejected, but in these cases they were consequently that the rule ought to be made absolute always rejected as depositions on the ground of the for a new trial.

absence of the requisite conditions under which depo

sitions as such were receivable : and in all the cases, CROMPTON, J.-The question in these cases was, except one at nisi prius (Atkins v. Humphrey, 1 Moo. whether my brother Wilde was right in receiving in & Rob. 523), they would seem not to have been offered -vidence certain depositions which had been used by under circumstances which would have raised the the defendant in 'à previous suit in Chancery. It question of their being receivable as admissions under appeared that the depositions in question had been the doctrine as to the admissions of documents by conused by the real defendant in this action in a previous duct to which I have alluded. In that case also, the suit in Chancery instituted by a stranger to all the par. question was treated as a question of the admissibility

of a document as a deposition. The doctrine now founded on the nature of the proceedings in Equity. in question was not adverted to, but it will be seen A party who uses such depositions does not know that the text-writers question, whether the document beforehand what they are, if he did such cases would would not have been receivable as an admission, stand on the same footing as the present. He can except for the mistaken notion as to the parties not only refer to what he expects will be produced. It is knowing what the deponent would provo, which I like the case of a witness called at nisi prius whose shall afterwards allude to, and on which ground alone evidence does not bind the party calling him. It is they suggest that the rejection might be supported, quite different from a case where a party produces as See the query made as to this decision in Starkie on part of his own statement an affidavit of which he Evidence, 312 (3rd ed.), note (a), referring to the knows the contents." Patteson, J., in the same case observations of Mr. Phillips on the same case in the lays it down positively, that when a party for any 8th edition of his treatise on Evidence, p. 371. Mr. purpose produces a document containing certain state. Taylor, in the 2nd edition of his work on Evi- ments, “such statements are as against him evidence dence, p. 397, remarks, that "it might perhaps of the facts which they contain." Coleridge, J., appear at first sight, that these depositions having remarks that the defendant “arms himself with a been read by the party himself against whom they statement which he makes his own and uses,” and were offered in evidence, would, in spite of a want adds, “ that is clearly evidence against him afterwards of mutuality, be receivable as admissions, and the of the facts in the statement. The statement may be correctness of this decision has consequently been of more or less avail.” The same learned Judge after. questioned by more than one able writer on evidence; wards, in the course of his judgment in the same but the Court of Queen's Bench has given the true case says, “As to the depositions in Equity, they answer to the argument by pointing out that a party stand on the same footing as the vivd voce evidence who prior to the 12th of November, 1852, read depo- given in a Court of Law. A man does not make all sitions in Equity did not know beforehand what they that is said by a witness whom he calls evidence were, and, therefore, was no further bound by their against himself hereafter. In Chancery the deposicontents than he would have been by the vivâ voce tions are sealed up from the time of their being taken testimony of a witness whom he might have called at until publication passes. That is like the case of a nisi prius.” I was entirely satisfied in the course of party calling a witness whose evidence he does not the argument that the Courts and Judges who have hear till it is given. The present is the case of a party relied on the supposed want of knowledge of the con using a statement which he has seen before he uses it, tents of depositions read by the parties tendering them and which is neither the inore nor the less admissible in ovidence at the hearing of the cause in Equity, for being made on oath.” There could hardly be a proceeded on a mistake of practice, the depositions stronger recognition of the principle contended for by being in the hands of a party after publication, and it the plaintiff than the above judgment of those three being for him to select what portion of the deposition learned Judges. he chooses to read, and this was proved at the trial to

In the subsequent case of Gardner v. Moult, Pattehave been the case in the suit in Equity in which the son, J., distinctly recognises the above doctrine, saying depositions in question were read. That documents

“ The distinction pointed out in Brickell v. Hulse is admitted by a party or used in evidence by him are

a sound one; and I do not intend to depart from it. generally receivable as admissions has been established But it is not material by what name the document is by many modern cases, and though, in the discussion called, it is in substance an affidavit within the meanof such cases, it has been assumed that depositions in ing of the distinction there laid down, though called a Chancery used by the party against whom they might deposition.” It would certainly be a strange distincbe offered would not be evidence, it has been laid |tion, as pointed out by Mr. James in his

able down that they would be so admissible, except for the argument, if it were to be held that a deposition read mistaken notion above referred to, that their contents

as this was read, is not evidence, but that an afiare unknown to the party like the evidence of wit. davit when the Court is proceeding on affidavits is nesses he is calling at nisi prius.

evidence against the party using it. It must always In Brickell v. Hulse, Lord Denman says, “It is very be remembered that it is not the obtaining the affidavit important that this subject should not be left subject or deposition, but the making use of it as true, which to doubt. There can, I think, be no question but that is the ground on which such evidence is supposed to be a statement which a party produces on his own behalf, receivable. These cases are commented upon and rightly whether on oath or not, becomes evidence against him. explained by the Court of Exchequer in the case of There is nothing to distinguish it from the statement Boileau v. Rutlin, as instances of admissions by con: made by the party himself. Rudworth v. Countess of | duct. Parke, B., said, in delivering the judgment of Pembroke seems opposed to this view, for there the the Court, “In the first of the above-mentioned cases, defendant was not permitted to use any of the depo- Brickell v. Hulse, it may be presumed that the party sitions made in an Equity suit wherein the plaintiff prepared the affidavit which he afterwards exhibited had been defendant. That decision, however, was

as true, at all events, that he exhibited it for the


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