1848. BOILEAU v. RUTLIN. statements in the bill were inadmissible in evidence against the plaintiff; but the learned judge received the bill as some evidence, and the jury having found that the amount paid into court was a sufficient compensation for the occupation, from the time the suit terminated until Christmas, 1846, his Lordship directed a verdict for the defendant, reserving leave for the plaintiff to move to enter a verdict for him in respect of the previous occupation, if the Court should be of opinion that the bill in equity was inadmissible (a). A rule nisi having been obtained accordingly, Lush shewed cause (b).—The question is, whether statements in a bill in Chancery, upon which the plaintiff founds his claim to relief, are evidence against him in an action between the same parties? A parol admission by the plaintiff, that the agreement set out in the bill had in fact been made, would, no doubt, have been receivable in evidence:-Slatterie v. Pooley (c); Howard v. Smith(d); and it is difficult to see why the same statement, made in proceedings in court, should not be equally admissible. [Parke, B.-Under the old system of pleading, a declaration might contain twenty different statements of the same cause of action. Do you contend that every count would be evidence against the plaintiff of so many different contracts?] The question is not as to the effect of the evidence, but whether the plaintiff's declaration can be altogether excluded. In Buller's Nisi Prius, p. 235, it is said, "The bill in Chancery is evidence against the complainant, for the allegations of every man's bills shall be supposed true; nor shall it be supposed to be preferred by a counsel or (a) It was also objected, that the decree was not properly proved; but the judgment of the Court renders it unnecessary to notice the argument on that point. (b) The case was argued in Hilary Term, 1848, on the 22nd (c) 6 M. & W. 664. solicitor without the party's privity; and therefore it amounts to the confession and admission of the truth of any fact, and if the counsel have mingled in it any fact that is not true, the party may have his action; but in order to make the bill evidence against the complainant, there must be proceedings upon it; for if there were no proceedings upon it, it should rather be supposed to be filed by a stranger to bar the party of his evidence." The authority there cited is Snow d. Lord Crawley v. Phillips(a), which decided, that if a patron sue the parson on a bond, and the latter prefer his bill in Chancery for relief, stating the bond to be a simoniacal contract, the bill and proceedings upon it are evidence for the plaintiff in an ejectment to recover the rectory. A subsequent passage, in Buller's Nisi Prius (b), points out the distinction between the case of a bill for relief and a bill for discovery. It is there said:" But on an issue directed out of Chancery to try the validity of a deed, where one J. N. was produced to prove he wrote it by the direction of Lord Ferrers, in 1720, and to contradict his evidence the plaintiff produced a bill in Chancery preferred in 1719 by the defendant, which mentioned the deed, the Court would not suffer it to be read though an answer had been put in, because it was no more than the surmises of counsel, for the better discovery of title. However, in all cases where the matter is stated by the bill as a fact on which the plaintiff founds his prayer for relief, it will be admitted in evidence, and will amount to proof of a confession:" Lord Ferrers v. Shirley (c). In Woollett v. Roberts (d), it was held, that a bill filed by a defendant could not be read against him, "unless it were proved to have been exhibited with his privity." In Greenleaf on Evidence (e), after treating of admissions not conclusive, such as receipts 1848. BOILEAU V. RUTLIN. (b) Page 236. (e) Sect. 212, p. 246. (c) Fitz. 195, 7th edit. 1848. BOILEAU RUTLIN. and mere acknowledgments, it is said:-"So of a bill in Chancery, which is evidence against the plaintiff of the admissions it contains, though very feeble evidence, so far as it may be taken as the suggestions of counsel." In Bacon's Abridgment, "Evidence," (F.) (a), the law is stated in almost the same terms as in Buller's Nisi Prius. In Roe d. Lord Trimlestown v. Kemmis (b), Tindal, C J., in answer to a question put to the Judges by the House of Lords, says, “The fifth exception, on the part of the plaintiff, relates to the bill in Chancery filed by the lessor of the plaintiff against the said Thomas Kemmis, on the 14th of October, 1816, which bill the defendant produced for the purpose of shewing the subject-matter of the suit, and that the lessor of the plaintiff claimed as heir-at-law of his father, the Lord Nicholas, and offered to read those allegations therein; but the plaintiff excepted to the production of the evidence, and we think it is a sufficient answer against the allowance of the exception, that the bill in Chancery, the production and reading of which is now excepted against, had in an earlier stage of the cause been put in evidence by the plaintiff himself; for the bill, having formed part of the evidence, the whole was in evidence, and the defendant might have insisted, at the time of its production by the plaintiff, that the whole should be read; and, in consideration and contemplation of law, the whole was read. The present exception, therefore, came too late. And we further think the exception, even if the objection already pointed out could be removed, is not pointed to the purpose for which alone it was produced, but is general against its being produceable for any purpose, even if any just objection could be made against its application for the purpose intended, of which we are not aware." Doe d. Bowerman v. Sybourn (c) will probably be relied on. There, in answer to the plaintiff's (a) Vol. 3, p. 263, 7th edit. (b) 9 C. & F. 749. (c) 7 T. R. 2. case in ejectment, the defendant set up a lease from one Pym, in 1789. It was objected, that it did not appear that Pym had the legal estate in him at the time, but that it was outstanding in his trustees; and, in support of the objection, the lessor of the plaintiff offered in evidence a bill in Chancery, filed in 1790 by the defendant, in conjunction with Pym, against the trustees, praying a conveyance of the legal estate to Pym. Lord Kenyon rejected it, and told the jury they might presume a legal conveyance; upon which the plaintiff was nonsuited. On motion to set aside the nonsuit, Lord Kenyon said, “A bill in Chancery is never admitted in evidence further than to shew that such a bill did exist, and that certain facts were in issue between the parties, and in order to let in the answer or depositions of the witnesses." That dictum, however, was unnecessary for the decision of the case, and was uttered on mere motion, and without reference to any authority. In Warwick v. Foulkes (a), which was an action for false imprisonment, the defendant pleaded the general issue and a justification, but his counsel at the trial abandoned the justification; and it was held, that the putting such a plea on the record was a circumstance which the jury might take into their consideration in the estimation of damages. [Parke, B.-That was a statement on the record in the same action.] It has never been doubted that an answer in Chancery is receivable in evidence against the party making it. [Alderson, B.-That is because the party on oath affirms it to be true.] Upon the same principle, the bill would be evidence if it appeared by any mode that the plaintiff admitted the statements contained in it. When his privity is shewn, the bill becomes primary evidence. [Parke, B.-No doubt the bill, if admissible at all, would be primary evidence.] Where, in an action by the assignees of a bankrupt, for seizing a (a) 12 M. & W. 507. 1848. BOILEAU v. RUTLIN. 1848. BOILEAU V. RUTLIN. ship, the plaintiffs, in order to prove the taking, produced an examination of the defendant before the commissioners under the fiat, in which the fact was admitted, and in which examination was set out an agreement between the bankrupt and the defendant, under which the latter claimed to be entitled to the possession of the ship, the Court held, that this agreement could not be rejected, though not otherwise proved, and though it was produced before the commissioners on the cross-examination of the defendant by his own attorney: Goss v. Quinton (a). In the Fishmongers' Company v. Robertson (b), Tindal, C. J., says: "Even if the contract put in suit by the corporation had been on their part executory, only not executed, we feel little doubt but that their suing upon the contract would amount to an admission on record by them, that such contract was duly entered into on their part, so as to be obligatory on themselves, and that such admission on the record would estop them from setting up, as an objection in a cross action, that it was not sealed with their common seal." Brickell v. Hulse (c) decided, that if a party, on motion before a judge, use the affidavit of another person, such affidavit is, on any subsequent occasion, admissible as evidence against him who so used it, even on a trial where the person who swore the affidavit is present in Court. In Cole v. Hadley (d), it was held, that, on an issue of "not possessed," in trespass quare clausum fregit, it was competent for the defendant to use the deposition of a witness formerly called by the plaintiff to prove his possession, in a proceeding before justices for an alleged trespass on the same close. So, where a petitioning creditor, having ascertained that his agent could prove an act of bankruptcy, sent for him for that purpose to be examined, on opening the fiat it was held, (a) 4 Scott N. R. 471. (c) 7 A. & E. 454. |