words are the gist of the issue. Thus, on an indictment for perjury, evidence of the words spoken, coupled with a confident conviction on the part of the witness that they were all that was material to the pending inquiry, and that they were not qualified by other expressions, has been held to be sufficient (p). By the old practice of the Court of Chancery the depositions of witnesses taken in a former suit might, with the other proceedings, be read at the hearing of a subsequent cause, provided that the issue was the same, that the parties were the same, or that the parties in the second suit were privy to or had a community of interest with the parties in the first suit, and that the individual against whom the depositions were offered, or the person through whom he claimed, or with whom he had a community of interest, had an opportunity of cross-examining the witness (q). It was held by the House of Lords in City of London v. Perkins (r) that the depositions could be read during the lifetime of the witnesses. Knight Bruce, V.-C., in Blagrave v. Blagrave (s), expressed an opinion that when the point was substantially the same it would be necessary to follow that case, but at the same time he refused to allow the depositions of witnesses taken in a suit by a tenant for life in remainder under a will, to be used (p) R. v. Rowley, 1 Moo. 111. (9) Nevil v. Johnson, 2 Vern. 447. in a suit by a tenant in tail in remainder under the same will, without proof of the death or inability to be examined of such witnesses, although both suits were instituted for the preservation of the settled property. In a suit by a legatee under a will against the executor, the depositions in a previous suit against the same executor by another legatee, have been allowed to be read (s); the second suit being in pari materiâ with the first. It is hardly necessary to observe, that the depositions to be admissible in the subsequent suit must have been admissible in the first; so that when a bill was dismissed for irregularity, depositions taken for the purposes of that suit were not admissible in a subsequent suit (t). With regard to the use of affidavits made in a previous suit, the rule was stated by Kindersley, V.-C., in Laurence v. Maule (u), as follows:-"The general rule with regard to the admission of evidence is, that where an issue has been raised between certain parties and evidence has been adduced upon that issue by one of those parties which could be used by him as against the other party, and in a subsequent proceeding the same issue is raised between the same parties and the witness who gave evidence in the former proceeding has died, the court will admit the evidence given by the deceased witness in the former as evidence in the subsequent proceeding; but the evidence (8) Coke v. Fountain, 1 Vern. 413; cf. Nevil v. Johnson, 2 Vern. 447. (t) Backhouse v. Middleton, 1 Ch. Ca. 173-175. (u) 4 Drew. 472. is not admissible unless the issue is the same and the parties are the same in both proceedings." It was not an objection that the witness died or became a lunatic before he could be cross-examined (x). Affidavits made in proceedings in a winding-up order have been held admissible in another suit between the same parties (y). Where evidence was given vivâ voce in a former suit, if the same issue was raised between the same parties, what the witnesses said might be proved by any one who could swear to the words, it not being sufficient apparently to swear to the effect (s). It may be added, that, when two cases strongly resemble each other in point of fact, but the allegations of fact are not the same in each, the record in one cannot be referred to for the purpose of explaining or supplying anything doubtful in the other (a). The 136th section of the Bankruptcy Act, 1883 (b), provides, that "In case of the death of the debtor or his wife, or of a witness whose evidence has been received by any court in any proceeding under this Act, the deposition of the person so deceased purporting to be sealed with the seal of the court, or a copy thereof purporting to be so sealed, shall be admitted as evidence of the matters therein deposed to." (x) Per Kindersley, V.-C., Williams v. Williams, 12 W. R. 663. (y) Ernest v. Weiss, 1 N. R. 6. (z) Vide R. v. Jolliffe, 4 T. R. 290. (a) Gann v. Johnson, L. R., 4 E. & I. 265. (b) 46 & 47 Vict. c. 52. CHAPTER XVI. ADMISSIONS. WHEN a party to an action or suit has, either expressly, or by necessary implication, admitted the case of an opposite party, the latter is not required to prove it. ADMISSIONS, properly so called, can be made only in civil, and are not allowed in criminal, proceedings. They are regarded as being a waiver of proof on the part of their makers, rather than as evidence against them. They are potius ab onere probandi relevatio, quam proprie probatio. They are not conclusive unless they assume the form of estoppels. Admissions need not be pleaded as such (a). In Heane v. Rogers (b), Bayley, J., said: "There is no doubt but that the express admissions of a party to the suit, or admissions implied from his conduct, are evidence—and strong evidence-against him; but we think that he is at liberty to prove that such admissions were mistaken or were untrue, and that he is not estopped or concluded by them, unless another person has been induced by them to alter (a) Steuart v. Gladstone, L. R., 10 Ch. D. 644; 47 L. J., Ch. 423; 26 W. R. 657. (b) 9 B. & C. 586. his condition: in such a case the party is estopped from disputing their truth with respect to that person (and those claiming under him) and that transaction; but as to third persons he is not bound. It is a well-established rule of law that estoppels bind parties and privies, not strangers." This rule, it may be observed, applies to all admissions, and not to estoppels only. There are three classes of privies, viz., privies by blood (heir to ancestor), privies by law (executor to testator, husband to wife), and privies by estate or interest (purchaser to vendor, donee to donor) (b). The estate or interest in the last case may be either legal or equitable; and therefore the admissions of a party to the record are receivable to defeat the interest of a third person, although the person is only a nominal party and trustee for the latter, for the court will not look on any party to the record as a cipher (c). It is doubtful, however, how far the admission of a cestui que trust can be received to defeat the claim of the trustee on the record (d). There is no privity between a landlord and his tenant, and, as the tenant cannot derogate from his landlord's title, the admission of a tenant is no evidence against his landlord. Hence, a declaration by a tenant that he was not entitled to a right of common in respect of his farm, has been held to be no evidence that such right did not belong to the reversioner (e). (b) 2 Sm. L. C. 706. (c) Bauerman v. Radenius, 1 T. R. 663. |