law, even a domestic restraint, clearly and plainly imposed upon him in consequence of undisputed insanity, the proof showing sanity is thrown upon him, or upon them claiming under him."1 On the other hand, where insanity has not been imputed by relations and friends, or even by common fame, the proof of insanity, which does not appear to have ever existed, is thrown upon the party asserting it; 2 and it is not to be made out by rambling through the whole life of the individual, but must be applied to the particular date of the transaction.3

It has also been held, that where general lunacy has been established, and a party insists upon an act done during a lucid interval, the proof is thrown upon the party alleging the lucid interval; and that, in order to establish such an interval, he must prove something beyond a mere cessation of violent symptoms, viz. a restoration of mind to the party sufficient to enable him to judge soundly of the act.4

1 Where one is under guardianship as non compos, the presumption is that he is incapable of making a will. Breed v. Pratt, 18 Pick. 115. Yet this does not prevent his making a will, if his mind is actually sound. Ib.; Stone v. Damon, 12 Mass. 488; 2 Greenl. Ev. § 690; Crowningshield v. Crowningshield, 2 Gray, 531. See Stewart v. Lispenard, 26 Wend. 255. The commission of suicide by the testator is not conclusive evidence of insanity. Brooks v. Barrett, 7 Pick. 94; Duffield v. Robeson, 2 Harring. 583. See 2 Greenl. Ev. § 689, 690.

* See 2 Greenl. Ev. § 689, 690; Phelps v. Hartwell, 1 Mass. 71; Hubbard v. Hubbard, 6 Mass. 397; Breed v. Pratt, 18 Pick. 115; Rogers v. Thomas, 1 B. Monroe, 394; Morse v. Slason, 13 Vermont, 296; Jackson v. King, 4 Cowen, 207; Stevens v. Van Cleve, 4 Wash. C. C. 262; Burton v. Scott, 3 Rand, 399; Jackson v. Van Deusen, 5 John. 144; Hoge v. Fisher, 1 Peters C. C. 163; Pettes v. Bingham, 10 N. Hamp. 514; Gerrish v. Mason, 22 Maine, 438; Brooks v. Barrett, 7 Pick. 94, 99; Commonwealth v. Eddy, 7 Gray, 583; Baxter v. Abbott, 7 Gray, 71. Under the statutes of Massachusetts, it has been held that the burden of proving the sanity of a testator is upon him who offers the will for probate. Crowningshield v. Crowningshield, 2 Gray, 524. See Comstock v. Hadlyme, 8 Conn. 261. But in the absence of evidence to the contrary the legal presumption is in favor of the sanity of the testator. Baxter v. Abbott, 7 Gray, 71. See the notes on this subject of presumption of sanity on proof of wills in 1 Jarman Wills (4th Am. ed.), 75 to 81. If it is alleged that the testator had no knowledge of the contents of the will he has executed, or that he was induced to execute it by misrepresentation, the burden of proof is on those who object to the will. Pettes v. Bingham, 10 N. Hamp. 514.

White v. Wilson, 13 Ves. 87, 88; and see The Attorney-General v. Parnther, 3 Bro. C. C. 441; Price v. Berrington, 3 Mac. & Gor. 486; Jacobs v. Richards, 18 Beav. 300.

* Hall v. Warren, 9 Ves. 605, 611; Clark v. Fisher, 1 Paige, 171; Halley v.

It may also be stated, generally, that whenever a person obtains by voluntary donation a benefit from another, the onus of proof is upon him, if the transaction be questioned, to prove that the transaction was righteous, and that the donor voluntarily and deliberately did the act, knowing its nature and effect. Moreover, where the relation of the parties is such that undue influence might have been used, the onus of proof is upon the person receiving the benefit to show that such influence was not exerted.2

SECTION III.

Confined to Matters in Issue.

It is a fundamental maxim, both in this Court and in Courts of Law, that no proof can be admitted of any matter which is not noticed in the pleadings; this maxim has been adopted in order to obviate the great inconvenience to which parties would be exposed, if they were liable to be affected by evidence at the hearing, of the intention to produce which they had received no notice. In a former part of this Treatise, the operation of this rule, in requiring Webster, 21 Maine, 461; Boyd v. Eby, 8 Watts, 66; Jackson v. Van Dusen, 5 John. 144, 159; 2 Greenl. Ev. § 689; Goble v. Grant, 2 Green Ch. 629; Whitenach v. Stryker, 1 Green Ch. 8; Duffield v. Robeson, 2 Harring. 375; Harden

v.

Hays, 9 Barr, 151; 1 Jarman Wills, (4th Am. ed.) 67 et seq., and notes; Jencks v. Probate Court, 2 Rhode Isl. 255.

The rule does not apply to a case of insanity caused by violent disease. Hix v. Whittemore, 4 Metcalf, 545; Townshend v. Townshend, 7 Gill, 10. 1 Cooke v. Lamotte, 15 Beav. 234.

Hoghton v. Hoghton, 15 Beav. 228.

Whaley v. Norton, 1 Vern. 483; Gordon v. Gordon, 3 Swanst. 472; Clarke v. Turton, 11 Ves. 240; Williams v. Llewellyn, 2 Y. & J. 68; Hall v. Maltby, 6 Pri. 240, 259; Montesquieu v. Sandys, 18 Ves. 302; Powys v. Mansfield, 6 Sim. 565. See Story Eq. Pl. § 257, 28; Langdon v. Goddard, 2 Story C. C. 267; James v. M'Kenin, 6 John. 543; Lyon v. Tallmadge, 14 John. 501; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 169 et seq. and notes; 2 Ib. (Cowen & Hill's notes,) 429 et seq. and cases cited; 1 Greenl. Ev. § 51 et seq.; Gresley Eq. Ev. 159 et seq.; Barque Chusan, 2 Story C. C. 456; Barrett v. Sargeant, 18 Vermont, 365; Pinson v. Williams, 23 Miss. (1 Cush.) 64; Kidd v. Manley, 28 Miss. (6 Cush.) 156; Surget v. Byers, 1 Hemp. 715; Craige v. Craige, 6 Ired. Eq. 191. Proofs taken in a cause must be pertinent to the issue in that cause, secundum allegata. Underhill v. Van Cortlandt, 2 John. Ch. 339.

the introduction into a bill of every fact which the plaintiff intends to prove, has been pointed out: 1 it has also been shown that the same rule applies to answers, and that a defendant cannot avail himself of any matter in his defence which is not stated in his answer, although it should appear in his evidence; 2 little, therefore, remains to be noticed with reference to this part of the subject. It is, however, to be observed, that, in certain cases, evidence of particular facts may be given under general allegations, and that, in such cases, therefore, it is not necessary the particular facts intended to be proved should be stated in the pleadings. The cases in which this exception to the general rule is principally applicable are those where the character of an individual, or his general behavior, or quality of mind, comes in question; as where, for example, it is alleged that a man is non compos, it is the experience of every day that you give particular acts of madness in evidence, and not general evidence only that he is insane. So where you charge that a man is addicted to drinking, and liable to be imposed upon, you are not confined, in general, to his being a drunkard, but particular instances are allowed to be given.5 In like manner, where the charge in a bill was, that the defendant was a lewd woman, evidence of particular acts of incontinence was allowed to be read. In cases of this nature, however, it is necessary, in order to entitle the party to read evidence of particular facts, that they should be pointed directly to the charge.

The cases in which evidence of particular facts may be given under a general allegation or charge, are not confined either to cases in which the character or quality of mind or general behavior of a party comes in issue; the same thing may be done where the question of notice is raised in the pleadings by a general 1 Ante, p. 335.

* Ante, pp. 725, 726; Smith v. Clarke, 12 Ves. 477. From the case of The London and Birmingham Railway Co. v. Winter, Cr. & Ph. 63, it seems that a fact brought to the attention of the Court by the evidence, but not stated upon the answer, will, under some circumstances, afford a ground for inquiry, before a final decree.

'Gresley Eq. Ev. (Am. ed.) 161 et seq.; Story Eq. Pl. § 28, 252.

Clark v. Periam, 2 Atk. 333, 340.

• Ibid.

⚫ Clark v. Periam, 2 Atk. 333, 340. See also the cases there cited; Sidney v. Sidney, 3 P. Wms. 269; Lord Donerail v. Lady Donerail, cited 2 Atk. 338; and see Wheeler v. Trotter, on the question how far particular acts of misconduct can be given in evidence under a general charge of misbehavior.

allegation or charge. Thus, where the defence was a purchase for a valuable consideration without notice of a particular deed; but, in order to meet that case by anticipation, the bill had suggested that the defendant pretended that she was a purchaser for a valuable consideration without notice, and simply charged the contrary; the deposition of a witness who proved a conversation to have taken place between himself and a third person, who was the solicitor of the defendant, and the consequent production of the deed, was allowed to be read as evidence of notice.1

It is to be observed, that the question whether the party had notice or not, is a fact; and that, the fact of the defendant having had notice having been put in issue, the mode in which the fact was to be proved was not important to be put upon the record ; for the rule that no evidence will be admitted, at the hearing of any facts, but those which are mentioned in the pleadings, requires that the facts only intended to be proved should be put in issue, and not the materials of which the proof of those facts is to consist.2

Thus, in a case of pedigree, if Robert Stiles be alleged to be the son of John Stiles, the fact to be proved is the relationship of Robert Stiles to John Stiles, and that may be done by any mode which the rules of evidence will allow, and it is not necessary to state that mode upon the record. It is upon this principle that documentary evidence, or letters themselves, are not specifically put in issue. In fact a party may prove his case, by written or parol evidence indifferently, and is under no more restrictions in the one case than in another. It is not necessary to put every written document in issue. Thus, where a bill charges an agreement for the purpose of establishing a lien, the general rule has been laid down that whatever would be evidence of the agreement at Law is evidence in Equity, subject to this, that if one party should keep back evidence which the other might explain, and thereby take him by surprise, the Court will give no effect to such evidence, without first giving the party to be affected by it an opportunity of controverting it.5

1 Hughes v. Garner, 2 Y. & C. 328, Exch. R.

Blacker v. Phepoe, 1 Moll. 355. See Story Eq. Pl. § 28, 252, 263, 265 a. Blacker v. Phepoe, 1 Moll. 355.

Per Sir Anthony Hart, in Fitzgerald v. O'Flaherty, 1 Moll. 351. See also Lord Cranstown v. Johnston, 3 Ves. 176; Dey v. Dunham, John. Ch. 188;

Pardee v. De Cala, 7 Paige, 132; Kellogg v. Wood, 6 Paige, 578.

Malcolm v. Scott, 3 Hare, 63.

It is to be remarked, however, that, although letters and writings in the hands of a party may be proved and used as evidence of facts, they cannot be used as admissions or confessions of facts by the opposite party without being mentioned in the pleadings.1 For it is a rule, that if a letter or writing amounts to a confession or an admission, it must be put in issue, in order that the party against whom it is to be read should have an opportunity to meet it by evidence or explanation.2

So,

This rule, it is to be remarked, is not confined to writings, but applies in every case where the admission or confession of a party is to be made use of against him. Thus it has been held, that evidence of a confession by a party that he was guilty of a fraud, could not be read, because it was not distinctly put in issue. also, evidence of alleged conversations between a witness and a party to the suit, in which such party admitted that he had defrauded the other, was rejected, because such alleged conversations had not been noticed in the pleadings.*

It is to be observed, that it is only when conversations are to be used as admissions, that the rule, which requires them to be stated on the record, applies. Where the conversation is in itself the evidence of the fact, it need not be specially alluded to; as in the case of Hughes v. Garner,5 before referred to, where the notice was communicated to the defendant by a conversation, which was made use of to prove the fact of the conversation having taken place, and not as an admission by the party that he had received notice.

Another rule of evidence, which may be noticed in this place, is, that the substance of the case made by the pleadings must be

1 Houlditch v. Marquis of Donegal, 1 Moll. 365; and see Graham v. Oliver, 3 Beav. 124; Whitley v. Martin, 3 Beav. 226.

Hall v. Maltby, 6 Pri. 240, 268; Mulholland v. Hendrick, 1 Moll. 359.

4 Farrell v. —, 1 Moll. 363; see, however, M'Mahon v. Burchell, 2 Phil. 127, in which Lord Cottenham would appear to have admitted such evidence. But it has been held in this country by Mr. Justice Story, upon full consideration, that the confessions, conversations, and admissions of the defendant need not be expressly charged in a bill in Equity, in order to enable the plaintiff to use them in proof of facts charged, and in issue therein. Smith v. Burnham, 2 Sumner, 612; Jenkins v. Eldredge, 3 Story C. C. 183, 283, 284. See Story Eq. Pl. § 265 a, and note; Brown v. Chambers, Hayes Exch. 597; Malcolm v. Scott, 3 Hare, 39, 63; Brandon v. Cabiness, 10 Alabama, 155.