observed, that, at Common Law, the general rule is, that a bill in Chancery will not be 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 depositions of witnesses, and that it cannot be admitted as evidence to prove any facts either alleged or denied in the bill.1 In Courts of Equity, however, a different rule prevails, and the bill may be read as evidence, for the defendant, of any of the matters therein positively averred.2

With respect to admissions made by the answer of a defendant,3 it is to be observed, that, although a plaintiff by his replication denies the truth of the whole of the defendant's answer, he does not thereby preclude himself from reading whatever portion of it he thinks will support his case; except the answer be that of an in

11 Phillips on Evid. 359; 1 Phil. Ev. (Cowen and Hill's ed. 1839,) 358, 359, note 640 in 2 ib.; Cowen and Hill's notes, 923, 924; Rankin v. Maxwell, 2 Marsh. Ken. 488, 489; Belden v. Davies, 2 Hall (N. Y.), 444; Owens v. Dawson, 1 Watts, 149, 150; Rees v. Lawless, 4 Litt. 218.

Ives v. Medcalfe, 1 Atk. 63.

• 3 Where the bill charges a fact to be within the knowledge of the defendant, or which may fairly be presumed to be so, if the answer is silent as to the fact, it will be taken as admitted. It is otherwise, where the fact is not within the knowledge of the defendant, nor presumed to be so. Moore v. Lockett, 2 Bibb, 67, 69; Mitchell v. Maupin, 3 Monroe, 187; Hardy v. Heard, 15 Ark. 184; Booth v. Booth, 3 Litt. 57; Moseley v. Gassett, 1 J. J. Marsh. 212, 215; M'Campbell v. Gill, 4 J. J. Marsh. 87, 90; Kennedy v. Meredith, 3 Bibb, 466; Pierson v. Meaux, 3 A. K. Marsh. 6; Wilson v. Carver, 4 Hayw. 92; Neal v. Hagthorp, 3 Bland, 551; Bank of Mobile v. Planters' & Merchants' Bank, 8 Alabama, 772. But see Gamble v. Johnson, 9 Missouri, 605; De Wolf v. Long, 2 Gilman, 679. By Rule 8, Chancery Practice in New Hampshire, "all facts well alleged in the bill, and not denied or explained in the answer, will be held to be admitted." Where a fact is admitted by the answer, the defendant cannot question or deny it by the proofs. Lippencott v. Ridgway, 3 Stockt. (N. J.) 526. The answer of a defendant in Chancery, being a confession, is always evidence against him, when pertinent, whoever may have been the parties in the cause in which it was interposed. Kiddie v. Debrutz, 1 Hayw. 420; Mims v. Mims, 3 J. J. Marsh. 103, 109, 110; Roberts v. Tennell, 3 Monroe, 247, 249; Hunter v. Jones, 6 Rand. 541; 1 Phil. Ev. (Cowen and Hill's ed. 1839,) 359, note 642, in 2 ib. Cowen and Hill's notes, 926. An answer, admitting the correctness of a copy of a deed made by another person, and to which there was no subscribing witness, is evidence, both of the contents and of the execution of the deed, against the person making such admission. Adams v. Shelby, 10 Alabama, 478. See Clark v. Spears, 7 Blackf 96. The answer, not under oath, may, in relation to its admissions, be used against the defendant as if it were under oath. Smith v. Potter, 3 Wis. 432. And the plaintiff may avail himself of such admissions without thereby making the denials evidence for the defendant. Ib.

fant, which, as we have seen, can never be read to establish a fact which it is against the infant's interest to admit.1 It may be observed, however, that although the answer of an infant cannot be read against him, the answer of the person under whom he derives title may; and therefore it has been held, that if, in a suit to establish a will against the heir, the heir puts in his answer admitting the will, and dies before the hearing, the derivative heir, though an infant, will be bound by the admission, and that the will need not be proved.2 Of course, if an infant heir is bound by the admission of his ancestor, such an admission will be equally binding upon an adult.

It must not, however, be supposed that, in permitting a plaintiff to read a portion only of the defendant's answer in support of his case, a Court of Equity will allow a plaintiff to read a passage from a defendant's answer, for the purpose of fixing a defendant with an admission, without reading the explanations and qualifications by which the admission may be accompanied, even though such explanations and qualifications be contained in a distinct passage from that offered to be read.

The rule is, "that where a plaintiff chooses to read a passage from a defendant's answer, he reads all the circumstances stated in the passage. If the passage so read contains a reference to any other passage, that other passage must be read also." But it is to be observed, that although a defendant has a right to insist that, where a plaintiff reads a passage from his answer, he shall read other passages in the answer which are connected in meaning with the first passage, whether such passages are connected in point of grammatical construction, or separated by passages relating to distinct subjects, the Court will not, where "a plaintiff reads a passage in a defendant's answer, as evidence of a particular fact, allow a defendant to read, as evidence, any subsequent mat

Robinson v. Cooper, 4 Sim. 131; Loch v. Foot, ib. 132; ante, p. 163. 'Bartlett v. Gillard, 3 Russ. 157; see also Lord Ormond v. Hutchinson, 13 Ves. 47, 53; 16 Ves. 94, S. C. See also Bartlett v. Gillard, 3 Russ. 156; Rude v. Whitchurch, 3 Sim. 562; Nurse v. Bunn, 5 Sim. 225; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 359, 360, note 643 in 2 ib. 926 to 928. If on exceptions being taken, a second answer is put in, the defendant may insist upon having that also read, to explain what he swore in his first answer. 1 Phil. Ev. 359, note 644,

in 2 ib. 928.

Rude v. Whitchurch, 3 Sim. 562; Nurse v. Bunn, 5 Sim. 225.

1

ter, although it may be connected with the passage, which the plaintiff had read, by such words as 'but' or 'and,' unless the subsequent matter is explanatory of the passage read by the plaintiff." It is also to be remarked, that even where a passage is allowed to be read as explanatory of a part previously read by the plaintiff, it is to be read only for the purpose of explanation so far as explanation may be necessary. If in the passage so read new facts and circumstances are introduced, in grammatical connection with that which must be read for the purpose of explaining the reference, the facts and circumstances so introduced are not to be considered as read.2

To this may be added, that where a plaintiff, in reading a passage from a defendant's answer, has been obliged to read an allegation which makes against his case, he will be permitted to read evidence to disprove such allegation.3

4

There was formerly a distinction between bills for relief and bills for discovery, in the right of the plaintiff to read the answer of the defendant, for it used to be the rule that where an answer to a bill of discovery only was used as evidence, the whole should be read, as at Law; but now the 42d Order of August, 1841, has directed "That where a defendant in Equity files a cross bill for discovery only against the plaintiff in Equity, the answer to such cross bill may be read and used by the party filing such cross bill, in the same manner and under the same restrictions as the answer to a bill praying relief may now be read and used."5

With respect to what will be considered as such an admission by an answer, as will dispense with the necessity of other proof, it

1 Davis v. Spurling, 1 R. & M. 64, 68; and see Miller v. Gow, 1 Y. & C. 59 ; Connop v. Hayward, 1 Y. & C. 33.

2 Bartlett v. Gillard, ubi supra. See 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 359, note, 643 in 2 ib. 926, 927. Where an answer admits a fact and insists on a distinct fact by way of discharge or avoidance, the latter, even if part of the same transaction, must be proved by evidence aliunde. Parkes v. Gorton, 3 Rhode Isl. 27; Walker v. Berry, 8 Rich. (S. C.) 33; Cummins v. Cummins, 15 Ill. 33; Stevens v. Post, 1 Beasley (N. J.), 408, 410, 411; Hart v. Ten Eyck, 2 John. Ch. 62; Miller v. Wack, Saxt. (N. J.) 209; Beckwith v. Butler, 1 Wash. R. 224; Thompson v. Lamb, 7 Vesey, 587.

Price v. Lytton, 3 Russ. 206.

* Lord Ormond v. Hutchinson, 13 Ves. 47; 16 Ves. 94, S. C.

As a defendant is now enabled to examine the plaintiff upon interrogatories without filing a cross bill, it may be doubted whether this order is any longer material.

may be stated, that besides those expressions which in words admit the fact alleged to be true, a statement by the defendant that "he believes," or that he has been "informed and believes," that such fact is true, will be sufficient, unless such statement is coupled by some clause to prevent its being considered as an admission. The rule in Equity being, that what the defendant believes the Court will believe.1

A mere statement, however, in an answer, that a defendant has been informed that a fact is as stated, without an answer as to his belief concerning it, will not be such an admission as can be read as evidence of the fact.2 Such an answer is, in effect, insufficient; and if the plaintiff, upon reading the pleadings, finds such a statement as to a fact, with respect to which it is important to have the defendant's belief, he should except to the answer for insufficiency. It is to be remarked, that although the Court will, in general, consider what the defendant "believes" to be true, as admitted by him, it will not treat the statement of an heir at law, that he believes a will to have been executed, as an admission of the will, but will require either a direct admission or proof of its execution, in the usual way.3

It has been before stated, that the answer of an infant being in fact the answer of his guardian, cannot be read against him. The answer, however, may, it seems, be read against the guardian ; and in Beasley v. Magrath,5 the answer of an infant by his mother and guardian in another cause, was read against the mother in her own capacity. And it seems, that where a defendant, being an infant, answers by guardian, and at full age neither amends nor makes a new answer, as he may do, but prays a hearing of the cause de novo, his answer is evidence against him."

But although the answer of an infant cannot be read against him, the rule is different with respect to the answer of a person of weak intellect, taken by guardian. The answer of an idiot or lunatic, put in by his committee, may also be read against him.

1 Potter v. Potter, 1 Ves. 274; Hill v. Binney, 6 Ves. 738.

1 Phil. Ev. (Cowen & Hill's ed. 1839), 360, note.

Potter v. Potter, 1 Ves. 274. And it appears the same rule is true with respect to the admission of the validity of a will by defendants who are not heirs at law. Davies v. Davies, 3 De Gex and Sm. 698.

Ante, p. 160; Gresley Eq. Ev. (Am. ed.) 323.

2 Sch. & Lef. 34.

• Hind. 422.

'Ante, p. 169.

For the rules of practice with regard to reading the answer of married persons, the reader is referred to a former portion of this Treatise.1

It may be stated, as a general rule, that the answer of one defendant cannot be read for the purpose of affording evidence against another,2 without notice to such other defendant of the plaintiff's intention to read it.3

In cases, however, where the right of the plaintiff as against one defendant is only prevented from being complete by some question between the plaintiff and a second defendant, the plaintiff has

1 Ante, p. 142 et seq.

* Jones v. Turberville, 2 Ves. jr. 11; 4 Bro. C. C. 115, S. C; 1 Greenl. Ev. § 178; Jones v. Turberville, 2 Sumner's Vesey, 11, note (b); 1 Phil. Ev. (Cowen & Hill's ed. 1839), 362, note 650, in 2 ib. 931; Porter v. Bank of Rutland, 19 Vermont, 410; Blodget v. Hobart, 18 Vermont, 414. It seems to be a well established general principle, that the answer of one defendant cannot be read in evidence against a co-defendant. Judd v. Seaver, 8 Paige, 548; Hayward v. Carroll, 4 Harr. & John. 518; Singleton v. Gayle, 8 Porter, 271; Conner v. Chase, 15 Vermont, 764; Thomasson v. Tucker, 2 Blackf. 172; Moseley v. Armstrong, 3 Monroe, 389; Robinson v. Sampson, 23 Maine, 388; Webb v. Pell, 3 Paige, 368; Collier v. Chapman, 2 Stew. 163; Chambliss v. Smith, 30 Ala. 366; Graham v. Sublett, 6 J. J. Marsh. 145; M'Kim v. Thompson, 1 Bland, 160; Calwell v. Boyer, 8 Gill & John. 136; Dexter v. Arnold, 3 Sumner, 152; Felch v. Hooper, 20 Maine, 159; Clarke v. Van Reimsdyk, 9 Cranch, 152, 156; Leeds v. Mar. Ins. Co. of Alex., 2 Wheaton, 380, 383; Dade v. Madison, 5 Leigh, 401; Daniel v. Boullard, 2 Dana, 296; Field v. Holland, 6 Cranch, 8; Fanning v. Pritchett, 6 Monroe, 79, 80; Roundlett v. Jordan, 3 Greenl. 47; Mills v. Gore, 20 Pick. 34. The answer of one defendant is not evidence against the other defendant, though prior to the filing of the answer the former may have transferred to the latter all his interest in the subject-matter of the controversy. Jones v. Hardesty, 10 Gill & John. 404. See also Haworth v. Bostock, 4 Younge & Coll. 1; Lewis v. Owen, 1 Ired. Eq. 290; Hoare v. Johnstone, 2 Keen, 553; Osborne v. U. States Bank, 9 Wheat. 738. But the answer of a defendant, which is responsive to the bill, is admissible as evidence in favor of a co-defendant, more especially where such co-defendant, being the depositary of a chattel claimed by the plaintiff, defends himself under the title of the other defendant. Mills v. Gore, 20 Pick. 28. But see Morris v. Nixon, 1 How. (U. S.) 118; Cannon v. Norton, 14 Vermont, 178. The deposition of a party in Chancery, read without objection, is evidence for his co-defendant. Fletcher v. Wier, 7 Dana, 354. See Wolley v. Brownhill, 13 Price, 500; S. C. 1 M'Lel. 317. If a defendant in his argument relies on the answer of his co-defendant, he thereby makes it evidence against himself. Chase v. Manhardt, 1 Bland, 336.

Cousens v. Vasey, 9 Hare, Appx. 61; and see M'Intosh v. Great Western Railway Company, 4 De G. & Sm. 544. The case of answers to a bill of interpleader affords an exception to this rule; Lyne v. Pennell, 1 Sim. N. S. 113.