Owens v. Dawson , 1 Watts 149 ( 1832 )

The opinion of the Court was delivered by

Rogers, J.

This was an action of assumpsit, for money had and received for goods sold and delivered. Pleas, non assumpsit, and payment with leave, &c.

The case was this. John Lang was indebted to Dawson 450 dollars. Dawson gave Owens an order on Lang for 300 dollars, which was to be a credit on Lang’s note, which was delivered to Owens. Owens received from Lang, on the order, 177 dollars, and afterwards recovered from him 60 dollars. It was alleged by Dawson that the whole amount of the order was not owing by him to Owens, and for the difference this suit was brought. To prove the issue, on his part, the plaintiff offered in evidence a bill in chancery, filed in the superior court of chancery in Winchester, Virginia, by John Gordon and Frederick Light against Joshua Dawson, Vincent Owens and John Lang. The defendant objected to the reading of the bill, but the court admitted the evidence, and the defendant excepted. The admission of the evidence is the only error assigned. It must also be stated, as part of the case, that the subpoena, in chancery, was served on Lang, and on either Vincent or William Owens, but not on Dawson. Lang alone made answer. The decree, and the rest of the record, excepting the bill, was admitted by consent, and all the facts stated in it admitted. The bill alleges the receipt of 100 dollars by Owens from Lang. In this there was error. Answers in chancery, which are confessions,, are strong evidence against the party who makes them. But a bill in chancery wherein many of the facts are the mere suggestions of counsel, made for the purpose of extorting an answer from the defendant, will not be, in evidence, except to show that such a bill did exist, and that certain facts were in issue between the parties, in order to introduce the answer, or the .deposition of witnesses. It is not admitted in courts of law, as evidence, to Know any fact either alleged or denied in the bill. Lord Kenyon is reported to have admitted a bill in chancery, filed by an ancestor, to be evidence of a pedigree there stated, as a declaration in the family. But it was resolved by the judges, in the Banbury Peerage case, on a question put to them by the house of lords, that a bill in equity, or depositions, cannot be received in evidence in the courts of common law, oh the trial of an ejectment against a party' not claiming or deriving title in any manner under the plaintiff or defendant in the chancery suit, either as evidence of the facts therein deposed, or as declarations respecting pedigree. The law seems, therefore, to be now settled, that a bill in chancery cannot be given in evidence as an admission of facts against the complainant himself, except in the case of pedigree, and not even then, except as a party who claims or derives title in some manner under the plaintiff or defendant in the chancery suit.

The bill was not offered to prove pedigree, but the fact that Owens had received one hundred dollars from Lang ; and if the bill would not, as we have shown, have been evidence against the complainants, it is difficult to conceive in what way it can be made evidence, for that purpose, against Owens in favour of Dawson. It must be remarked, that the subpoena was served on Lang, and on either Vincent or William Owens, but Lang alone answers. It was not served on Dawson; so that the only person who can be said to have admitted the facts, was Lang. This, therefore, was res inter alias acta, and not admissible as evidence, either for or against either Dawson or Owens. A decree in chancery may be given in evidence on the same footing, and under the same limitations, as the verdict and judgment of a court of common law. If this, then, had been a suit by Gordon and Light against Dawson, Owens and Lang, a judgment against Dawson and Lang would not be evidence in a suit between Dawson and Owens. The fact that the rest of the record, excepting the bill, was admitted by consent, and all the facts stated in it admitted, does not alter the case.. We have no right to extend the case beyond the agreement of the parties. It is true that, according to the course of the chancery practice, there was a decree against all the defendants, although it was Vincent Owens that was served with notice of the bill, and it was certain that Dawson was not. This proceeding in chancery was in rem, and not in personam. The right to appear and show cause against the decree is reserved to the absent defendant.

We cannot think that the allegations in the bill ought to be given against either of the defendants, by the other, in a suit between them, as it is uncertain whether either had notice of even the filing of the bill, and cannot be supposed, except as between the complainant and them, to have admitted the truth of them. If John Lang paid the sum alleged in the bill, he was a competent witness to prove the fact, in a suit between Owens and Dawson.

Judgment reversed, and a venire de novo awarded.