“With respect the true question is whether there is any rule of evidence which estops a party from pleading differently in a subsequent suit from what his counsel formally pleaded in the former suit on a subject that was not material to the former dispute. The judgment in the 1915 suit was not pleaded in the Defence; it was tendered through one of the plaintiffs in cross-examination; it was not relied upon in any way in the concluding address for the defendant in the Court below. Why it was put in we cannot understand. We asked Mr Thomas, the defendant’s learned counsel, to tell us whether he knew of any authority for the use made by the trial judge of the admission in the 1915 suit; he said he did not know of any and did not rely on that admission. We have since verified the point; it will be enough to quote this passage from the leading case of Boileau v. Rutlin, 2 Exch. Reports 665 at 681 (154 E.R. 657 at 663): “The facts actually decided by an issue in any suit cannot be again litigated between the same parties, and are evidence between them, and that conclusive, upon a different principle, and for the purpose of terminating litigation; and so are the material facts alleged by one party, which are directly admitted by the opposite party, or indirectly admitted by taking a traverse on some other facts, but only if the traverse is found against the party making it. But the statements of a party in a declaration or plea, though, for the purposes of the cause, he is bound by those that are material, and the evidence must be confined to them upon an issue, ought not, it should seem, to be treated as confessions of the truth of the facts stated.” We are of opinion that the learned judge erred in the use he made of the former judgement.”
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