proved;1 that is, all the facts alleged upon the pleadings which are necessary to the case of the party alleging them, and which are not the subject of admissions either in the pleadings or by agreement, must be established by evidence. Thus the plaintiff's title, as set out in the bill, must be proved, whether the statement of it in the bill was necessary or not.2

In the case of a plaintiff, however, it is sufficient to prove so much only of the allegations in the bill as are necessary to entitle him to a decree.3 Thus, where the suit is for an account, all the evidence necessary to be read at the hearing is, that which proves the defendant to be an accounting party, and then the decree to account follows of course; and any evidence as to the particular items of an account, however useful they may be in a subsequent stage of the cause, would be irrelevant at the original hearing.*

It may be noticed here, that sometimes, where, through inadvertence or negligence, the plaintiff has omitted to prove some particular fact which is necessary to support his case, the Court has permitted him to supply the defect by giving him leave to exhibit interrogatories 5 to prove the fact omitted. This is frequently done in the case of wills disposing of real estates, where either the plaintiff has relied upon the admission of the will by answer, which

1 1 Phil. Ev. (Cowen & Hill's ed. 1839) 200 et seq. and notes; 1 Greenl. Ev. § 56 et seq.; Gresley Eq. Ev. (Amer. ed.) 167 et seq. The rule at law, that the evidence must substantially support the plaintiff's declaration, is applicable to bills in Chancery. Moffet v. Claverts, 1 Scam. 384; Mansy v. Mason, 8 Porter, 111; Shelby v. Shelby, 1 B. Monroe, 278; Thompson v. Thompson, 2 B. Monroe, 174; Beers v. Botsford, 13 Conn. 146.

2 Edney v. Jewell, Mad. & Geld. 165; Gresley Eq. Ev. (Amer. ed.) 172. Gresley Eq. Ev. (Amer. ed.) 167 to 169.

Law v. Hunter, 1 Russ. 101, 107; see, however, the observations of Sir J. Wigram, V. C., in the case of Tomlin v. Tomlin, 1 Hare, 245; Forsyth v. Ellice, 2 Mac. & Gor. 209. The Court should be satisfied that the plaintiff is entitled to have an account taken. If the Court is satisfied upon that point the practice is to refer the case to a Master to state the details of the account, and ascertain the balance. But the Chancellor may, if he sees fit, take the account himself. He not only may, however, but ought to refuse an account, if he is satisfied upon the evidence that nothing is due the plaintiff, or that for any cause an account ought not to be decreed. Green C. J. in Campbell v. Campbell, 4 Halst. Ch. (N. J.)

743.

5

" Interrogatories are not used under the present practice, but probably an affidavit would now be allowed.

Lechmere v. Brasier, 2 Jac. & W. 288. See Davies v. Davies, 3 De Gex & Sm. 760.

the Court thinks not sufficiently full, or where the absence or death of one of the witnesses to the will,2 or the testator's sanity,3 has not been proved.*

In general, orders of this nature are made upon a simple application by counsel at the hearing of the cause. This, however, can only be done where the ground for making it appears, satisfactory to the Court, and is not required to be established by other evidence. Where further evidence is required to enable the Court to make the order, application must be made either by petition,5 or by motion, supported by affidavit.

6

In some cases, the Court, instead of ordering the cause to stand over for the purpose of exhibiting interrogatories, has made a decree as to all that part of the case which is in a situation to be decided upon, and directed evidence to be adduced to prove the rest.

Where, however, in a creditor's suit the plaintiff, having taken a bill pro confesso against one of the defendants, who was the executor, adduced no evidence of his debt as against the other defendants who were the devisees of the testator's real estate, and who did not sufficiently admit the debt, Lord Cottenham refused to allow the plaintiff at the hearing an opportunity of going into new evidence against the devisees, and dismissed the bill with costs as against them.

It may, however, be observed, that since the occurrence of these cases, a statutory power has been conferred upon the Court, of requiring the production of a witness for its own satisfaction, by the Chancery Amendment Act, sect. 39: "Upon the hearing of any cause depending in the said Court, whether commenced by bill or by claim, the Court, if it should see fit so to do, may require the production and oral examination before itself of any witness or 1 Potter v. Potter, 1 Ves. 274; and see Hood v. Pimm, 4 Sim. 101.

2 Wood v. Stane, 8 Pri. 613.

* Abrams v. Winshup, 1 Russ. 526; Wallis v. Hodgson, ib. 527, n.; 2 Atk. 56, S. C.; and see Ore v. Johnson, Seton on Decrees, 363; Moons v. De Bernales, 1 Russ. 307; Lechmere v. Brasier, ubi supra; Hodgson v. Merest, 9 Pri. 563; Cox v. Allingham, Jac. 337.

See Gresley Eq. Ev. (Am. ed.) 132 to 138, where many instances are given of relief in cases of defects or omissions, whether they are brought to light and become material in consequence of something which arises unexpectedly in the course of the proceedings, or were caused by accident or inadvertence.

• Cox v. Allingham, Jac. 337.

• Attorney-General v. Thurnall, 2 Cox, 2.

↑ Lechmere v. Brasier, ubi supra.

8

• Marten v. Wichelo, Cr. & Ph. 251; see also Hughes v. Eades, 1 Hare, 486.

party in the cause, and may decree the costs of attending the production and examination of such witness or party, to be paid by such of the parties to the suit, or in such manner as it may think fit." And by sect. 41, "In cases in which it shall be necessary for any party to any cause depending in the said Court to go into evidence subsequently to the hearing of such cause, such evidence shall be taken, as nearly as may be, in the manner hereinbefore provided with reference to the taking of evidence with a view to such hearing."

SECTION IV.

Of the Effect of a Variance.

It is not only necessary that the substance of the case made by each party should be proved, but it must be substantially the same case as that which he has stated upon the record; 1 for the Court will not allow a party to be taken by surprise by a case proved on the other side different from that set up by him in the pleadings. Thus the specific performance of an agreement to grant a lease for three lives cannot be decreed upon what amounts to evidence of an agreement to grant only for one life.2 The principles which guide the Court in matters of this description are clearly stated by Lord Redesdale in his judgment in Deniston v. Little, from which it appears that the general practice of the Court is, to compel parties who come for the execution of agreements, to state them as they ought to be stated, and not to set up titles, which, when the cause comes to a hearing, they cannot support.

We have seen, in a former part of this Treatise, that, in bills

1 Gresley Eq. Ev. (Am. ed.) 170 to 173; 1 Greenl. Ev. § 63 et seq; 1 Phil. Ev. (Cowen & Hill's ed. 1839) 205 et seq. and notes; Hobart v. Andrews, 21 Pick. 526, 534; Bellows v. Stone, 14 New Hamp. 175; Crothers v. Lee, 29 Ala. 337; Bowman v. O'Reilly, 31 Miss. (2 George,) 261; Reynolds v. Morris, 7 Ohio (N. S.), 310; Williams v. Starr, 5 Wis. 534; Gurney v. Ford, 2 Allen, 576; Andrews v. Farnham, 2 Stockt. (N. J.) 91; McWhorter v. McMahan, 10 Paige, 386; Sears v. Barnum, 1 Clark, 139.

2 Lindsay v. Lynch, 2 Sch. & Lef. 1. See also Mortimer v. Orchard, 2 Ves. jr. 243; Legh v. Haverfield, 5 Ves. 453; Woollam v. Hearn, 7 Ves. 222; Deniston v. Little, 2 Sch. & Lef. 11, n.; Savage v. Carroll, 2 Ball & B. 451; Daniels v. Davison, 16 Ves. 249; Story Eq. Pl. § 394, note; Harris v. Knickerbocker, 5

Wendell, 638.

• Ubi supra.

where the rights asserted are founded in prescription, a considerable degree of certainty is required in setting out the plaintiff's case; to this may be added, in this place, that, in general, the proof must correspond in certainty with the case so set out.2

We have seen before, that in some cases, where a plaintiff has alleged a different agreement in his bill, from that which has been admitted by the answer, the Court has permitted the plaintiff to amend his bill by abandoning the first agreement and insisting upon that stated upon the answer; 3 and when the defendant sets up a parol variation from the written contract, it will depend on the particular circumstances of each case, whether that is to defeat the plaintiff's title to specific performance or whether the Court will perform the contract, taking care that the subject-matter of this parol agreement or understanding is carried into effect, so that all parties may have the benefit of what they contracted for.* When, however, there is a material variance in a written agreement, it is the ordinary practice to dismiss the bill with costs, without prejudice to the plaintiff's bringing a new bill.5

It must be recollected that the Court has now, in this respect, larger powers to make a decree, according to the real merits of the case, than it formerly possessed."

It may here be remarked generally, without any further statement of the general principles of evidence, that the rules upon this subject are the same in Equity as at Law, and that what the reader will find to be laid down in Treatises on Evidence as the rule in Courts of Law, will generally be applicable to cases in Courts of Equity.7

Scott v. Fenwick, 3 Eagle & Y 1318; Uhthoff v. Lord Huntingfield, cited 1 Pri. 237; 2 Eagle & Y. 649, S. C.; Prevost v. Benett, 1 Pri. 236; 3 Eagle & Y. 705, S. C.; Blake v. Veysie, 3 Dow, 189; 2 Eagle & Y. 699; Miller v. Jackson, 1 Y. & J. 65.

* 1 Greenl. Ev. § 71, 72; 1 Phil. Ev. (Cowen & Hill's ed. 1839) 210 et seq. and

notes.

Ante, p. 409; Bellows v. Stone, 14 N. Hamp. 175. Such amendment may be allowed even after a hearing upon bill, answer, and evidence. Ib.

* London and Birmingham R. R. Co. v. Winter, Cr. & Ph. 62.

• Lindsay v. Lynch, 2 Sch. & Lef. 1; Woollam v. Hearn, 7 Ves. 222; Deniston v. Little, 2 Sch. & Lef. 11, n.; See Story Eq. Pl. § 394, and note.

• Ante, p. 405 et seq.

Manning v. Lechmere, 1 Atk. 453; Glynn v. Bank of England, 2 Vesey, 41; Morrison v. Hart, 2 Bibb, 5; Lemaster v. Burckhart, 2 Bibb, 28; Dwight v. Pomeroy, 17 Mass. 303; 1 Greenl. Ev. § 98 et seq.; Gresley Eq. Ev. (Amer. ed.) 218 et seq.

HAVING endeavored to direct the practitioner's attention to the matters which it will be necessary for him to establish by evidence in the cause, the next thing to be considered is the nature of the proofs by which such matters are to be substantiated. The subject was until recently one of great intricacy and importance, and to discuss it fully would have required a lengthy treatise. The whole law of evidence has, however, been completely changed in modern times, and a mass of refined distinctions, the growth of ages, almost entirely swept away. The rules upon the subject are now very few and simple, and it will be necessary to do little more than call the attention of the reader to the recent statutes and orders of the Court on the subject.

In so doing it will be the most convenient course to divide the subject of evidence into, I. Documentary or written evidence; and, II. Oral or unwritten evidence.

I. Documentary or written evidence consists of all those matters which are submitted to the Court in the shape of written documents. It is not of course intended to include in this definition the depositions of witnesses examined in the cause; for although, by the practice of Courts of Equity, the evidence to be derived from the parol examination of witnesses is set down in writing, and brought before the Court in that form, yet this does not vary the nature of the evidence itself, which, being spoken by the witness vivâ voce to the person by whom he was examined, does not, from the circumstance of its being by him committed to writing, for the more convenient use before the Judge, lose its parol character. Neither is it intended to include evidence by affidavit, which has recently been the most usual form in which witnesses tender their evidence. Such evidence is, in fact, a simple and easier mode by which the parol evidence of witnesses is communicated to the Court.

It is to be observed, that some descriptions of documentary evidence are admitted by the Court without the necessity of any proof