rily disproved. Nor is the answer, in such case, to be discredited nor any presumption indulged against it, on account of its being the answer of an interested party.1

§ 285. The test of the responsive character of the answer is by ascertaining whether the questions answered would be proper to propound to a witness in a trial at law; whether they would be relevant to the complaint, and such as the witness would be bound to answer; and whether the answers would be competent testimony against the interrogating party. Thus, the answer is held competent evidence for the defendant, of all those facts, a statement of which is necessary in order to make a full answer to the bill. So, if an account is required by the bill, and is given in the answer, or is rendered to the master, and explained in answers to interrogatories put before him, the answers are responsive, and are competent evidence for the defendant. So, if the bill sets forth only a part of the complainant's case, omitting the residue, and the omitted part is stated in the answer, thereby showing a different case from that made by the bill, and not merely by way of confession and avoidance, it is evidence in the cause. And hence, where a bill, for the specific performance of a contract in writing, called on the defendant to answer as to the making of the contract, the execution of the instrument, how it was disposed of, and when, where, and how the defendant obtained possession of it, and under what pretences; it was held, that the allegations in the answer, setting up an agreement to rescind the contract, were responsive to the bill, and were evidence for the defendant.6

1 Clason v. Morris, 10 Johns. 542; Field v. Holland, 6 Cranch, 24; Woodcock v. Bennet, 1 Cowen, 743, 744, n.; Stafford v. Bryan, 1 Paige, 242; Forsyth v. Clark, 3 Wend. 643.

2 Dunham v. Yates, 1 Hoffm. Ch. R. 185.

3 Allen v. Mower, 17 Verm. 61.

4 Powell v. Powell, 7 Ala. 582; Chaffin v. Chaffin, 2 Dev. & Bat. Ch.

255.

5 Schwarz v. Wendell, Walk. Ch. 267.

6 Woodcock v. Bennett, 1 Cowen, R. 711.

§ 286. Regularly, in proceedings in Chancery, the defendant's answer is under oath, unless the plaintiff chooses to dispense with it; in which case he moves the Court for an order to that effect; which, if the defendant is under no incapacity, such as infancy, or the like, is ordinarily granted.1 If the parties agree, the order is granted of course; and if the plaintiff files a replication to an answer not sworn to, this is evidence of a waiver of the oath.2 Where the answer is not sworn to, its effect and value, as evidence in the cause, is a point on which, in this country, some difference of opinion has been expressed. The rule in England, as held by Lord Eldon, was, that the defendant's answer without oath gave the same authority to the Court to look at the circumstances, denied or admitted in the answer so put in, for the purpose of administering civil justice between the parties, as if it was put in upon the attestation of an oath. In a case in the Supreme Court of the United States, which was an injunction-bill, filed upon the oath of the complainant, to which an answer, by a corporation, was put in without oath, the question was as to the amount of evidence necessary to outweigh the answer. The Court said that the weight of such answer was very much lessened, if not entirely destroyed, as matter of evidence, when not under oath; and, indeed, that they

1 Cooper, Eq. Pl. 325; Story, Eq. Pl. § 874; 2 Dan. Ch. Pr. 846.

2 Fulton Bank v. Beach, 6 Wend. 36; 2 Paige, 307, S. C. By the present Code of Practice in New York, if the plaintiff makes oath to his complaint, the defendant is bound to put in his answer under oath; but the verification to the answer may be omitted, when an admission of the truth of the allegations might subject the party to prosecution for felony. Amended Code, § 157; Hill v. Muller, 8 N. Y. Leg. Obs. 90; Swift v. Hosmer, 6 N. Y. Leg. Obs. 317; 1 Code Rep. 26, S. C.; Alfred v. Watkins, 1 Code Rep. 343, N. S. If the defendant verifies his answer by oath, all the subsequent pleadings must be verified in like manner, whether the complaint is verified or not. Lin v. Jaquays, 2 Code Rep. 29; Levi v. Jakeways, Id. 69; Code, ubi supra.

3 Curling v. Townsend, 19 Ves. 628. This was an application by the defendant for leave to file a supplemental answer; in other words, to deprive the plaintiff of the benefit to which he was entitled from the answer which was already on the record, but was without oath. 2 Dan. Ch. Pr. 848.

were inclined to adopt it as a general rule, that an answer not under oath, is to be considered merely as a denial of the allegations in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegations. But the cause was not decided on this ground, there being sufficient circumstances, in the case, corroborating the testimony of the opposing witness, to outweigh the answer, even if it had been sworn to.1 And Mr. Chancellor Walworth, in a case before him, is reported to have held, that an answer, not sworn to, was not of any weight as evidence in the cause.2 But Mr. Justice Story, speaking of such an answer, was of opinion, that it is by no means clear that it is not evidence in favor of the defendant as to all facts, which are not fully disproved by the other evidence and circumstances in the case, nor clear that it ought not to prevail, where the other evidence is either defective, obscure, doubtful, or unsatisfactory. And it may well be suggested, he adds, whether the plaintiff has a right to dispense with the oath, and yet to make the answer evidence in his own favor as to all the facts which it admits, and exclude it in evidence as to all the facts which it denies.3

1 Union Bank of Georgetown v. Geary, 5 Pet. 99, 112.

2 Bartlett v. Gale, 4 Paige, 503. And see, accordingly, Willis v. Henderson, 4 Scam. 13. In some of the United States, it is enacted, that when the plaintiff waives his right to a sworn answer, the answer shall have no more weight as evidence, than the bill. See Michigan, Rev. Stat. 1846, ch. 90, § 31; Illinois, Rev. Stat. 1845, ch. 21, § 21. See also, Massachusetts, Reg. Gen. in Chan. 24 Pick. 411, Reg. 5. If the defendant is entitled, by the rules of law, to have his answer considered in evidence, though not sworn to, the question has sometimes been raised, whether the Court can, by any rule of practice, exclude it.

3 Story, Eq. Pl. § 875, d. Subsequently to the publication of the work here cited, the same point was adverted to by Mr. Justice Wayne, in delivering the opinion of the Court in Patterson v. Gaines, 6 How. S. C. R. 588; in which he cited and reaffirmed the observations of the learned Judge in 5 Pet. 112, above quoted, and also that of Mr. Chancellor Walworth, in Bartlet v. Gale, supra. But here, too, the point was not raised in argument, nor was it judicially before the Court, the testimony of the opposing witness being, as the Judge remarked, so strongly corroborated by other proofs,

§ 287. The general rule that the defendant's answer, responsive to the bill, is evidence in his favor, is subject to several limitations and exceptions. For though, in form, it is responsive to an interrogatory in the bill, yet if it involves also, affirmatively, the assertion of a right, in opposition to the plaintiff's demand, it is but mere pleading, and is therefore not sufficient to establish the right so asserted.1 The answer, also, must not be evasive; it must be direct and positive, or so expressed as to amount to a direct and positive denial or affirmation of the facts distinctly alleged and charged or denied in the bill, in order to have weight as evidence, in his own favor, in regard to those facts. And this is especially true, as to facts charged in the bill as being the acts of the defendant, or within his personal knowledge. If, however, they are such, that it is probable he cannot recollect them so as to answer more positively, a denial of them according to his knowledge, recollection, and belief, will be sufficient. And no particular form of words is necessary; it being sufficient if the substance is so.5 But if the defendant professes a want of knowledge of the facts alleged in the bill, the answer is not evidence against those allegations, even though he also expressly denies them. So, if the fact

that the answer would be disproved, if it had been sworn to. The attention of the Court does not seem to have been drawn to the doubt suggested by Mr. Justice Story. In Babcock v. Smith, 22 Pick. 61, 66, the question, whether the depositions of co-defendants were admissible for each other, where the plaintiff had waived the oath to their answers, was raised, but not decided.

1 Paynes v. Coles, 1 Munf. 373; Clarke v. White, 12 Pet. 178, 190.

2 2 Dan. Ch. Pr. 830, 831, 984, and notes by Perkins; Wilkins v. Woodfin, 5 Munf. 183; Sallee v. Duncan, 7 Monr. 382; Hutchinson v. Sinclair, Id. 291. And see McGuffie v. Planters Bank, 1 Freem. Ch. 383; Amos v. Heatherby, 7 Dana, 45.

3 Hall v. Wood, 1 Paige, 404; Sloan v. Little, 3 Paige, 103; Knickerbacker v. Harris, 1 Paige, 209, 212.

4 Ibid.

5 Utica Ins. Co. v. Lynch, 3 Paige, 210.

6 Drury v. Connor, 6 H. & J. 288; Bailey v. Stiles, 2 Green, Ch. 245 ; McGuffie v. Planters Bank, 1 Freem. Ch. 383; Town v. Needham, 3 Paige,

asserted by the defendant is such, that it is not and cannot. be within his own knowledge, but is in truth only an expression of his strong conviction of its existence, or is what he deems an infallible deduction from facts which were known to him; the nature of his testimony cannot be changed by the positiveness of his assertion, and therefore the answer does not fall within the rule we are considering. The answer of an infant, also, by his guardian, ad litem, though it be responsive to the bill, and sworn to by the guardian is not evidence in his favor; for it is regarded as a mere pleading, and not as an examination for the purpose of discovery.2

§ 288. But in order that the answer may be evidence for the defendant, it is not always necessary that it should be responsive to the bill; for where no replication has been put in, and the cause is heard upon the bill, answer and exhibits, the answer is considered true throughout, in all its allegations, and whether responsive or not; upon the plain and obvious principle that the plaintiff, by not filing a replication and thereby putting the facts in issue, has deprived the defendant of the opportunity to prove them.3 And if, after a replica

546; Dunham v. Gates, 1 Hoffm. Ch. R. 185; Whittington v. Roberts, 4 Monr. 173; The State v. Holloway, 8 Blackf. 45.

1 Clark v. Van Riemsdyk, 9 Cranch, 160, 161; Pennington v. Gittings, 2 G. & J. 208. And see Copeland v. Crane, 9 Pick. 73; Garrow v. Carpenter, 1 Port. 359; Waters v. Creagh, 4 Stew. & Port. 310; Lawrence v. Lawrence, 4 Bibb, 357; Harlan v. Wingate, 2 J. J. Marsh. 138; Hunt v. Rousmanier, 3 Mason, 294; Fryrear v. Lawrence, 5 Gilm. 325; Dugan v. Gittings, 3 Gill, 138; Newman v. James, 12 Ala. 29.

2 Bulkley v. Van Wyck, 5 Paige, 536. And see Stephenson v. Stephenson, 6 Paige, 353.

3 2 Dan. Ch. Pr. 1188, 1189; Id. 984, and note by Perkins; Dale v. McEvers, 2 Cowen, 118, 126. And see Barker v. Wyld, 1 Vern. 139; Kennedy v. Baylor, 1 Wash. 162; Peirce v. West, 1 Pet. C. C. R. 351; Slason v. Wright, 14 Verm. 208; Leeds v. Marine Ins. Co. 2 Wheat. 380. In Arkansas, it is enacted, that "when any complainant shall seek a discovery respecting the matters charged in the bill, the disclosures made in the answer shall not be conclusive, but, if a replication be filed, may be contra