¶1The court are all of opinion, that the fact of the defendant’s having filed and withdrawn a specification of defence could not be given in evidence, or taken into consideration by the jury, either in establishing the malice of the defendant, or in estimating the damages. The pleadings are usually filed by the attorneys; and they are filed with a view of laying the merits of the respective parties before the court, in a technical form, and can hardly be considered as the act of the parties. It is not competent for the jury to hear evidence, and inquire and decide whether a specification of defence was filed bona fide or mala fide. A bill of particulars filed by a plaintiff, or a specification of defence filed by a defendant, is usually a formal document, drawn up by counsel, after some examination of his client’s case, and is made broad enough to cover all which the party can expect, in any event, to prove ; and in most instances, probably, is not seen by the party in whose behalf it is filed.
¶2But the statute is decisive. By the Rev. Sts. c. 100, § 18, '* when a defendant shall plead two or more pleas in defence, no averment, confession or acknowledgment, contained in any one of such pleas, shall be used or taken as evidence *256against him, on the trial of any issue joined on any other of the same pleas.” The specification is in the nature of a plea, and is substituted for it. No “ averment ” contained in it shall be used as evidence. It is in the nature of a privileged communication. It is a statement, submitted to a court of competent jurisdiction, and which is to be heard and decided upon by the court.
¶3If it be true, that no averment, confession or acknowledgment, made by a party in one plea, shall be used as evidence against him, on the trial of any other on the same record, a fortiori shall it not be so used, after it is withdrawn by leave of the court. The case then, stands as if no specification had been filed. Prescott v. Tufts, 4 Mass. 146. The fact that a specification of defence had been filed, and by leave withdrawn, without resorting to the paper itself, tc ascertain what averments it contained, would prove nothing. If, therefore, it were admitted as proof, it would be to use those averments as evidence; which is prohibited by the statute.
¶4Verdict set aside, and a new trial granted