purpose of proving a certain fact." In the present ease the deposition seems to me to have been used for the purpose of proving the very fact which the plaintiff Bought now to prove as against the now real defendant by these depositions.

The most recent case on the subject (Pritchard v. Bagshaw) is a very strong case to establish that every document knowingly used as true by a party in a suit | is evidence against him. In that case an abstract of title and affidavit had been used by the defendants before a Master in Chancery in a suit with a third party, and the same were afterwards offered in evidence in an action by the plaintiff, a stranger to the suit in Equity. The very learned counsel for the defendants, in moving for a rule for a new trial, was obliged to concede that the affidavit having been used by the defendants in the Chancery suit was, no doubt, admissible against them; but he insisted that the abstract of title stood upon a different footing. Sir John Jervis, then Lord Chief Justice of the Court of Common Pleas, observed, "That it would be a dangerous principle to lay down that a statement made by a party is not evidence against him, because it is not quite full;" and the Court refused to grant a rule on the ground of the reception of either of these documents. It may be observed, with reference to one branch of Mr. Groves's argument, that the affidavit in this case seems probably to have been used by the legal adviser, and not by the party; but this was certainly the case in Gardner v. Moult, where the solicitor was the party sending the witness, and using the deposition; and the Court of Queen's Bench, and afterwards the Court of Exchequer, in their remarks upon the case, in Boileau v. Rutlin, treated the act of the solicitor as the act of the party. Upon this state of the authorities I feel bound to hold that a document knowingly used as true by a party in a Court of justice is evidence against him as an admission, even for a stranger to the prior proceedings, at all events, when it appears to have been used for the very purpose of proving the very fact for the proving of which it is offered in evidence in the subsequent suit. I think also that it now appears that such depositions as those in question do not fall within the class of cases which establish a kind of exception, that a party is not bound by evidence which he adduces without knowing what it may turn out to be, as in the common case of the evidence of witnesses called at nisi prius by a party who cannot tell what they will say. I am quite sensible of the difficulties and inconveniences which have been suggested as likely to arise, and have had, and still have, great doubts upon the question; and I am very glad that the parties will have the opportunity of having it discussed and settled in a Court of Error, who may examine the authorities more fully than a Court of co-ordinate jurisdiction can do. At present the case seems to me to fall within the principle established by the weight of the authorities; and 1 certainly am not prepared to decide that my brother

Wilde was wrong in receiving the evidence; and I, therefore, think that this rule should be discharged.

COCKBURN, C.J.-I am of opinion that the depositions upon which the present question arises, were properly received in evidence.

The depositions in question were made in a suit in Chancery of Edwards v. Meyrick, in which the real defendant in the present action, Mr. Meyrick, was defendant, and which was a suit instituted by the plaintiff Edwards, to set aside a purchase from him by Meyrick, of the estate in which the locus in quo in dispute in the present action is, according to Mr. Meyrick's present contention, situate, on the ground that Mr. Meyrick, having been the solicitor of the vendor, had taken advantage of that position, and had not given full value for the estate. In order to negative the allegation of inadequacy of price, it became material to Mr. Meyrick to reduce as much as possible the acreage and value of the estate, and the depositions in question were taken and used in the suit, for the purpose of fixing the acreage at a given amount, and materially lowering the value.

Now, the contest in the present action being whether an extensive tract of mountain land formed part of Mr. Meyrick's estate, or belonged to the Marquis of Bute, as lord of the manor, and it being clear that if the acreage and value of the estate were what was contended in the Chancery suit by the defendant, the locus in quo in respect of which, for the purpose of the present action the defendant Mr. Meyrick asserts a right of ownership, could not possibly be included in it, the depositions were offered in evidence for the plaintiff for the purpose of proving what, according to the defendant's own showing, the extent and value of the estate really was. I am of opinion that these depositions were properly admitted in the present action, as assertions made by the real defendant, Meyrick, as to facts material to the issue in the action.

It cannot be doubted that a man's assertions or admissions, whether made in the course of a judicial proceeding or otherwise, and, in the former case, whether he was himself a party to such proceeding or not, may be given in evidence against him in any suit or action in which the fact so asserted or admitted, becomes material to the issue to be determined. And in principle, there can be no difference whether the assertion or admission be made by the party sought to be affected by it himself, or by some one employed, directed, or invited by him to make the particular statement on his behalf.

In like manner, a man who brings forward another for the purpose of asserting or proving some fact on his behalf, whether in a'Court of justice or otherwise, must be taken himself to assert the fact which he thus seeks to establish. Thus in Brickell v. Hulse, an action against a sheriff, an affidavit (used by the defendant with the view to obtaining interpleader process, for which purpose it was necessary to show

that the goods, the subject-matter of the action, had been seized by an officer of the sheriff) was held admissible on the trial of the action to establish this fact against the defendant, on the ground that such an affidavit was equivalent to the statement of the party himself. So in Gardner v. Moult, a deposition made by a witness who was sent by the solicitor of the defendant to prove an act of bankruptcy with a view to a fiat, was held admissible in an action by the assignees of the bankrupt against the petitioning creditor. These cases appear to me fully to establish the proposition, that where a witness is called for the purpose of proving a particular fact, this amounts to an assertion of that fact by the party who so uses his testimony. And in this respect I must observe that I can see no difference between written and oral testimony. For while I concur in the proposition that the evidence of a witness called on a trial is not necessarily or to the full extent to which it may go admissible against the party calling him in a future proceeding, yet if it can be shown that the witness was called to prove a specific fact, it appears to me that this would be admissible as an assertion of such fact by the party calling the witness. Thus if in Gardner v. Moult the evidence of the witness who was sent to prove the act of bankruptcy, instead of being taken in the form of a deposition, could according to the procedure of that Court have been taken orally, it would, in my judgment, have been equally receivable, as being in effect the statement of the party using it. On the other hand, as I have already said, I entirely concur in the position that it is not because a witness is called for the purpose of proving a particular fact or facts, that all he may say becomes admissible in any future proceeding, against the party calling him. And here, again, I see no valid distinction between vivá voce and written testimony. It has, indeed, been said that a party calling a witness to be examined in Court, may in many instances be ignorant how far the witness may make statements unfavourable to the party calling him; while a party using a written deposition does so with a full knowledge of what it contains, and after full opportunity of balancing the advantages and disadvantages of using it. But it must be borne in mind that the party in the one case calling the witness, and in the other using the deposition may do so not only without the intention of abiding by all the witness may say, but with the deliberate intention of calling on the Court or jury to disbelieve so much of the evidence as makes against him. Just as at nisi prius a party is sometimes under the necessity of calling a doubtful or even hostile witness, in order to prove some part of his case, which cannot otherwise be made out, and in the event of adverse statements being made by the witness, seeks to induce the jury to reject them as unworthy of belief, or as contradicted by the rest of the evidence; so, in the case of written evidence, a deposition or affidavit may under similar circumstances be used, with a

view to the adoption of a part, and the rejection of the rest. It would be in the highest degree unreasonable to suffer the party using the evidence to be affected by that portion which he may have repudiated or disregarded on the ground that the statements of the witness must be taken to be his.

Bearing in mind that the true ground on which such evidence is admissible is, that a party seeking to establish a fact by evidence in a Court of Justice, must be taken to assert the fact he so seeks to prove; it seems to me to follow on the one hand that oral evidence, so far as it shall appear to have been used to establish a specific fact, will be evidence against the party using it, as an assertion of that fact; and, on the other, that written evidence will be admissible against the party using it in a subsequent proceeding with a different party, not for the purpose of proving all the statements it may contain, but only so far as it shall appear to have been used to establish a given fact or facts. It is not because a witness may have been called, or a deposition used, that all the statements made are to be considered as having been adopted by the party using the evidence. In order to render this species of evidence admissible as the assertion of a particular fact by the party using it, it must appear, either from the evidence itself or from extrinsic circumstances, that it was used for the purpose of proving such fact.

In the present instance it sufficiently appears, both from the depositions themselves and also from the answer of the defendant in the suit, that the deposi tions were used for the express purpose of establishing the more limited acreage and value of the estate. This being so, the depositions were, in my judgment, admis sible in the present action, as showing the assertion by the defendant in a former legal proceeding of facts material to the case of the plaintiff in the present action.

I am not insensible to the inconveniences that may result from the admission of evidence of this sort. The evidence may have utterly failed in its effect in the original suit; the fact which was sought to be established may have been disproved by other evidence ; the decision of the Court or jury may have been adverse; the party may long since have abandoned the ground he formerly took. The production of such evidence in a subsequent suit may lead to collateral issues in the shape of inquiry into all the circumstances and bearings of the first: counsel, too, may possibly be embarrassed in the conduct of a cause, as regards the production of evidence by having to consider what may be its effect on the interests of their client beyond the present proceeding. But many of these difficulties would obviously apply in the case of statements made by the party, irrespective of legal proceedings, which if relevant to the matter in dispute, no one can deny to be admissible against him. All these difficulties exist equally in the case of affidavits and depositions in bankruptcy, both of which have been held to be admissible. The difficulty in which

it is suggested that counsel would be placed in the conduct of a cause becomes obviously reduced to a natter of small importance when the admissibility of the depositions is limited by the qualification which in my view it should be subjected to; namely, that it can only be used against the party where the purpose for which it is sought to use it is the same as that for which it was used on the previous occasion.

To me it appears that so soon as the principle is once admitted, that evidence given for the purpose of proving a particular fact may be afterwards received against the party producing it, as having been in effect his statement, the admissibility of depositions used in a suit in Equity, under similar circumstances, seems necessarily to follow. The ground upon which it has been thought in Courts of Law that such depositions were not admissible, namely, that the party sending the witness before the examiners had no opportunity of seeing the evidence till it was produced in Court, proves to have been founded on an entire misapprehension of the practice of Courts of Equity. It was shown incontrovertibly in the course of the argument before us in the present case, that at the time the suit of Edwards v. Meyrick was pending, the parties to a suit in Equity, after publication of the evidence, were entitled to use or reject such depositions as they thought fit. It is plain, from the language of Lord Denman, and of Patteson and Coleridge, JJ., in Brickell v. Hulse, that had those learned Judges been aware of the real state of the practice in Equity, they would have considered depositions in an Equity suit as standing on the same footing as affidavits and depositions in bankruptcy.

I feel it scarcely necessary to notice the objection that counsel in a suit are not authorised to affect their client beyond the limits of the cause immediately in hand. The same argument might be urged in the case of affidavits and of depositions in bankruptcy, the admissibility of which cannot now be denied. But, in my opinion, a counsel conducting a cause must be taken, as to the production of evidence, to be acting upon instructions from his client, and as representing his client; and if evidence is produced to establish a particular fact, that fact must be considered as asserted by the party in the cause. For these reasons I am of opinion that the evidence was rightly received, and consequently that this rule must be discharged.

recovering from the loser the money advanced, unless the request to pay were countermanded before the payment made.

DEMURRER.-Action for differences on shares paid by the plaintiff, a mining share agent, at the request of defendant.

The declaration was for money paid.

Plea-That the said money was paid by the plaintiff in respect of differences between the values of certain shares on the day of contract made, and a certain then future day fixed as the day of payment by the party against whom the differences happened: that the plaintiff knew it was a gaming transaction: that the contract was a wagering contract within the 8 & 9 Vict. c. 109, s. 18.

Demurrer.

Hodgson, for the demurrer.-The plea is bad on the authority of

Jessop v. Lutwyche, 10 Exch. 614;
Knight v. Cambers, 15 C. B. 562;
Knight v. Fitch, 15 C. B. 566;
Fitch v. Jones, 5 El. & Bl. 238.

Lopes, in support of the plea.-The plea shows that the plaintiff knew the transaction was a wagering contract, and, therefore, that it was void under the 18th section of the 8 & 9 Vict. c. 109; and, if void, how can plaintiff recover? There is no replication that the request was made after the loss occurred.

[ERLE, C.J.-Whether the original request is made before or after the loss seems to me to make no difference.]

[WILLIAMS, J.-Suppose defendant employs plaintiff to make illegal contracts in his own name, and the transaction results in a loss to the defendant. Suppose that then the plaintiff goes to the defendant and says, you need not pay because the contracts are void; but defendant says he shall pay; and the plaintiff thereupon pays for him, cannot he recover from the defendant?]

ERLE, C.J.-The plaintiff is entitled to our judgthat such contracts are null and void, and cannot be ment. The law as enacted by the Gaming Acts is, sued upon; but does not make them illegal. This case cannot be distinguished from Knight v. Cambers, or Jessop v. Lutwyche. On the present record there is nothing to exclude a subsequent request by the defendant to pay the money lost, and a promise to repay the plaintiff the money so advanced. Had the defendant immediately after the loss given the plaintiff notice not to pay, and, notwithstanding the plaintiff had paid in accordance with the custom of the Stock Exchange, then his position here might have been affected; but this question does not arise in the present case.