there are no proceedings upon it, then it cannot be given in evidence, unless they prove a privity in the party; for a man may file a bill in another's name to rob him of his evidence by a sham confession; and therefore, a bill filed without any proceedings upon it, has not the force of an evidence; for no man can suppose that the party did himself file the bill; for the bill, without any proceedings to bring the adversary to answer it, is of no use to the party; and therefore, it must be supposed rather to be filed by a stranger, to do him an injury." In Starkie on Evidence (a) it is said, "A bill in equity is always evidence for the purpose of proving as a fact, that such a bill has been filed. But a bill in equity is not admissible, as it seems, in any case, even against the plaintiff himself, or those who claim through him, as to any facts alleged in the bill, even although they relate to matters of pedigree." In Gresley's "Evidence in Equity” it is said (b), “The statements in the bill may be ranked among admissions, though perhaps they are not quite properly so called. They are, in truth, the exposition of the case on which relief is sought, and to refer to them is exactly similar to using the argument ex hypothesi in logic.” Again (c), "As for pleadings in equity, a bill is evidence of nothing whatever except the bare fact of such bill having been filed. It is often necessary that it should be proved, in order to let in the answer or depositions of the witnesses, and then to shew what facts were in issue. But of itself it does not even prove the existence of a suit,-'for it is no suit depending till the parties have appeared, or been served to appear, but only a piece of parchment thrown into the office, which may lie there for ever and never come to a suit' (d). Still less will it be received to prove the truth of its own assertions or denials, though it be of (a) Vol. 1, p. 331, 3rd edit. (6) Page 9, 2nd edit. (c) Page 426. (d) Moor v. Welsh Copper Company, 1 Eq. Ca. Abr. 39. 1848. BOILEAU V. RUTLIN. 1848. BOILEAU บ. RUTLIN. fered as nothing more than the declaration of an ancestor in a question of pedigree; for bills in equity are notoriously filled with fictitious matter. Neither is it allowed to be used against the plaintiff, the assertor of these false allegations, because it has been found by experience, that, under the present system of pleading, no process is so efficacious as alleging, in eventually eliciting the truth. The Court looks on these allegations as the mere suggestions of counsel, and connives at statements and charges being made, for the sole purpose of putting questions founded upon them to the defendant." In Medcalfe v. Medcalfe (a), Lord Hardwicke said, "At law the rule of evidence is, that a bill in Chancery ought not to be received in evidence, for it is taken to be the suggestions of counsel only; but in this Court it has been often allowed." There, however, the bill was read in the very same suit. [Alderson, B.—It might have been read for the purpose of limiting the proof, by shewing that certain evidence was inadmissible, because the party had not made a particular statement in his bill.] In Kilbee v. Sneyd (b), Lord Chancellor Hart refused to allow a bill to be read as evidence, saying, "The Court never reads a bill as evidence of the plaintiff's knowledge of a fact. It is mere pleader's matter. The statements of a bill are no more than the flourishes of a draughtsman." Slatterie v. Pooley (c), and Howard v. Smith (d), are cases in which the declarations of a party to a suit, in respect of a written document, were held to be evidence against him. But an admission by the defendant in an answer in Chancery, is merely secondary evidence of the execution of a deed, and therefore does not supersede the necessity of proving it by the subscribing witness: Call v. Dunning (e); 2 Stark. Evid. 25. In Snow (a) 1 Atk. 63. (d) 3 Scott N. R. 574. d. Lord Crawley v. Phillips (a) the answer and other proceedings in the suit were admitted in evidence, as shewing the privity of the party in whose name the bill was filed. In Roe d. Lord Trimlestown v. Kemmis (b) the bill was produced by the defendant for the purpose of shewing the subject-matter of the suit, and that certain matters were in issue between the parties. In Brickell v. Hulse (c) the party had used the affidavit as a true statement, and therefore it was admitted as evidence against him. The Court there advert to the distinction between affidavits so used and depositions made in a suit in equity. [Parke, B. -The marginal note to that case is not quite correct (d). If a person uses an affidavit containing a hundred different statements, they cannot all be evidence against him. Alderson, B.-The decision itself is quite correct; and the marginal note should have been, "Where a sheriff, in a case of interpleader before a judge, puts in an affidavit of his officer, that the latter seized the goods, that is evidence as against a sheriff, that the officer did so seize."] In Gardner v. Moult (e) the creditor sent his servant to prove a particular act of bankruptcy, and so made the deposition evidence against him of such act of bankruptcy. In Cole v. Hadley (f) it does not clearly appear upon what ground the evidence was held admissible. It may have been that the witness was the plaintiff's agent, sent to lay the information. Cur. adv. vult. The judgment of the Court was now delivered by PARKE, B.-This case was argued before my brothers Alderson, Rolfe, and Platt, and myself, on two days in the course of the sittings in and after Hilary Term, on shewing cause (a) 1 Sid. 220. (b) 9 C. & F. 749. (c) 7 A. & E. 454. (d) See 2 N. & P. 426. 1848. BOILEAU V. RUTLIN. 1848. BOILEAU v. RUTLIN. against a rule nisi to enter a verdict for the plaintiff, pursuant to leave reserved by Lord Denman. The action was for the use and occupation of the plaintiff's house for four years and a quarter, ending at Christmas, 1846. The defendant's answer was, that he had been let into possession on an agreement to purchase the plaintiff's leasehold interest for 6307., and continued in such possession for some time. The defendant paid into court a sum sufficient to cover the compensation for the occupation from the end of that time till Christmas; and the question was, whether he was bound to pay the remainder. In order to discharge himself from the rent for this period, it was necessary for him to prove that there was an agreement to purchase, under which he entered. He had given notice to produce the agreement; and, though the plaintiff offered to produce it, he did not call for it, but he put in, as evidence of the agreement, the plaintiff's bill in Chancery, which had been filed to compel the defendant to perform it, and which of course stated the terms of it. The defendant had answered, and the cause had proceeded to a hearing. It was objected, that the statements in the bill were inadmissible as evidence against the plaintiff. Lord Denman received the bill as some evidence of the contract, reserving the point; and the question in the case is, whether the bill ought to have been received for that purpose. It was not doubted that, if it was to be received, it was primary evidence, on the principle of the case of Slatterie v. Pooley (a). It is certain that a bill in Chancery is no evidence against the party in whose name it is filed, unless his privity to it is shewn. That was decided in Woollett v. Roberts (b), though no such decision was wanted. The proceedings on such a bill, after answer, tend to diminish the presumption that it might have been filed by a stranger, and appear to have been held sufficient to establish the (a) 6 M. & W. 664. (b) 1 Ch. Ca. 64. privity of the party in whose name it was filed: Snow d. Lord Crawley v. Phillips (a). When that privity is established, there is no doubt that the bill is admissible to shew the fact that such a suit was instituted, and what the subject of it was; but the question is, whether the statements in it are any evidence against the plaintiff of their truth, on the footing of an admission. Upon this point the authorities are conflicting. In the case referred to in Siderfin, it would seem that the bill, which was filed by the defendant to be relieved from a bond as simoniacal, was used against him to prove that he was simoniacally presented; but it does not very distinctly so appear. In Buller's Nisi Prius (b) a bill in Chancery is said to be "evidence against the complainant, for the allegations of every man's bill shall be supposed to be true; and therefore, it amounts to a 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." And, after referring to the conflicting authority in Fitzgibbon, 196, the author of that Treatise on the Law of Nisi Prius (c) lays it down as a clear proposition, that where the matter is stated by the bill as a fact on which the plaintiff founds his claim for relief, it will be admitted in evidence, and will amount to proof of a confession. These are the authorities in favour of the defendant. The recent case of Lord Trimlestown v. Kemmis (d), which was also mentioned, is not one in his favour, for the bill was there admitted to shew what the subject of the suit was, and to explain a subsequent agreement for a settlement between the parties. On the other hand, in the above-mentioned case of Lord (a) 1 Sid. 220. (b) Page 236. (c) In the course of the argument Parke, B., stated, that the Treatise was written by Lord Ba- (d) 9 C. & F. 749. 1848. BOILEAU v. RUTLIN. |