2. OBJECTIONS AT THE HEARING.

§ 353. The causes already mentioned, for which depositions may be suppressed before the hearing, may also be shown at the hearing, with the same effect. But we have seen the reluctance of the Court to suffer testimony to be lost by any accidental defect or irregularity, not going to the merits, and capable of supply or amendment; and the readiness with which its discretionary powers will be exerted, to cure defects and prevent the delay of justice. Hence it is, that objections, capable of being obviated in any of the modes we have mentioned, either by amendment in open Court, or by a new commission, new interrogatories, or a re-examination, are seldom made at so late a stage of the cause as the hearing; the usual effect being unnecessarily to increase the expense, and to cause delay; circumstances which the Judge may not fail to notice, to the party's disadvantage, in the subsequent disposition of the cause. The objections usually taken at the hearing are therefore those only which were until then undiscovered, or incapable of being accurately weighed, or which, if sustained, are finally fatal to the testimony. Of this nature are deficiencies in the amount of the proof required to over-balance the weight of the answer; impertinence or irrelevancy of the testimony; its inadmissibility to control the documentary or other written evidence in the cause, or to supply its absence; its inferior nature to that which is required; and the incompetency of the witnesses to testify, either generally in the cause, or only to particular parts of the matters in issue. Some of these subjects, so far as they have been treated in a preceding volume, will not here be discussed; our present object being confined to that which is peculiar to proceedings in Equity.

§ 354. And first, in regard to the quantity of proof required to overbalance the answer; we have already seen,1 that where

1 Supra, § 289. See also, ante, Vol. 1, § 260. Alam v. Jourdan, 1 Vern.

the answer is responsive to the allegations in the bill, and contains clear and positive denials thereof, it must prevail; unless it is overcome by the testimony of one positive witness, with other adminicular proofs sufficient to overbalance it; or, by circumstances alone, sufficient for that purpose. This rule, whatever may have been its origin or principle, is now perfectly well settled as a rule of evidence in chancery. The testimony of a single witness, however, is not in such cases utterly rejected; but when it is made apparent to the Court, that the positive answer is opposed only by the oath of a single witness, unaided by corroborating circumstances, the opposing testimony is simply treated as insufficient; but is not suppressed; for the Court will still so far lay stress upon it, as it serves to explain any collateral circumstances;1 and the circumstances, thus explained, may re-act, so as to give effect to the evidence, by the operation of the rule, that one witness, with corroborating circumstances, may prevail against the answer.2

§ 355. Secondly, as to the objection that the evidence is impertinent, or irrelevant, or immaterial, terms which, in legal estimation and for all practical purposes, are generally treated as synonymous, the character of this kind of testimony, and the principle on which it is rejected, at Law, have already been sufficiently considered. It is unimportant whether the evidence relates to matters not contained in the pleadings; or to matters admitted in the pleadings, and therefore not in issue; or to matters which though in issue, are immaterial to

161; Mortimer v. Orchard, 2 Ves. 244; Walton v. Hobbs, 2 Atk. 19; Smith v. Brush, 1 Johns. Ch. 461; 2 Poth. Obl. App. No. 16, by Evans, p. 236

242.

1 Anon. 3 Atk. 270; E. Ind. Co. v. Donald, 9 Ves. 283.

2 Gresley, Eq. Evid. p. 4, 227.

3 Ante, Vol. 1, § 49-55. And see Cowan v. Price, 1 Bibb, 173; Langdon v. Goddard, 2 Story, R. 267; Knibb v. Dixon, 1 Rand. 249; Contee v. Dawson, 2 Bland, 264; Piatt v. Vattier, 9 Pet. 405. Proofs without allegations, and allegations without proof, are alike to be disregarded. Hunt v. Daniel, 6 J. J. Marsh. 398.

the controversy, and therefore not requisite to be decided; as in either case it is equally open to objection. And the rule in Equity is substantially the same as at Law. Thus, in regard to matters not contained in the pleadings, where the bill was for specific performance of a contract for the purchase of an estate, by bidding it off at auction, and the defence was, that puffers were employed, proof of the additional fact, that the auctioneer declared that no bidder on the part of the plaintiff was present, was rejected.1 So, where the bill was to set aside a sale on the ground of fraud, practised by the defendant against the plaintiff, evidence that the defendant was the plaintiff's attorney, at the time of sale, as the fact from which the fraud was to be inferred, was rejected, because not stated in the bill.2

§ 356. It is not necessary, however, that all the specific facts to be proved should be stated in the pleadings; it is sufficient that their character be so far indicated by the pleadings as to prevent any surprise on the other party; and hence it is, that circumstances, not specifically alleged, may often be proved under general allegations. Thus, for example, where there is a general allegation that a person is insane, or is habitually drunken, or is of a lewd and infamous character; evidence of particular instances, of the kind of character thus generally alleged, is admissible. So, where the bill was for specific performance of an agreement to continue the plaintiff in an office, and in the answer it was alleged that the plaintiff had not accounted for divers fees which he had received by virtue of the office, and had concealed several instruments and writings belonging to the office; evidence of particular instances and acts of the misbehavior alleged was admitted. And where, in a bill by an executor, for relief against certain bonds

1 Smith v. Clarke, 12 Ves. 477, 480.

2 Williams v. Llewellyn, 2 Y. & J. 68.

3 Whaley v. Norton, 1 Vern. 484; Clark v. Periam, 2 Atk. 337; Carew v. Johnston, 2 Sch. & Lefr. 280.

4 Wheeler v. Trotter, 3 Swanst. 174, n.

H

given by the testator, alleged to have been extorted from him by threats and menaces and by undue means, and not for any real debt, it was answered that the bonds were for money lent and for other debts; evidence that the defendant was a common harlot, and that the bonds were given ex turpi causâ, was held admissible.1 But the general allegation, in cases of this class, must be so far specific as to show the nature of the particular facts intended to be proved. Therefore, where, to a bill by the wife, against her husband, for the specific performance of marriage articles, the defendant answered that the wife had withdrawn herself from him, and had lived separately, and very much misbehaved herself; evidence of particular acts of adultery was held inadmissible, as not being with sufficient distinctness put in issue by so general a charge.2

§ 357. But it does not follow that evidence, inadmissible as direct testimony, is therefore to be utterly rejected; for such evidence may sometimes be admitted in proof of collateral facts, leading, by way of inducement, to the matter directly in issue. Thus, in a bill to impeach an award, testimony relating to the merits, though on general grounds inadmissible, may be read for the purpose of throwing light on the conduct of the arbitrators. So, in a bill by the vendee, to set aside a contract for the purchase of lands, on the ground of fraudulent misrepresentations by the vendor, evidence of the like misrepresentations, contemporaneously made to others, is admissible in proof of the alleged fraudulent design. And on a kindred principle, facts apparently irrelevant may sometimes be shown, for the purpose of establishing a more general state of things, involving the matter in issue; as, for ex

1 Matthew v. Hanbury, 2 Vern. 187.

2 Sidney v. Sidney, 3 P. Wms. 269, 276.

3 Goodman v. Sayers, 2 J. & W. 259. For the application of a similar principle at Law, see Gibson v. Hunter, 2 H. Bl. 288; Bottomley v. United States, 1 Story, R. 143-145; Crocker v. Lewis, 3 Sumn. 1; Supra, § 15. Bradley v. Chase, 9 Shepl. 511.

ample, where acts of ownership exercised in one spot, have been admitted to prove a right in another, a reasonable probability being first made out, that both were once parcels of the same estate, belonging to one owner, and subject to one and the same burden.1

§ 358. In regard to facts already admitted in the pleadings, evidence in proof or disproof of which is therefore inadmissible, the rule applies only where the admission is full and unequivocal, and therefore conclusive upon the party; and this will be determined by the Court, in its discretion, upon the circumstances of the particular case.2

§ 359. Thirdly, as to the objection, that the evidence offered is inadmissible as a substitute for better evidence alleged to exist, or to control the effect of a writing. The subject of primary and secondary evidence, and the duty of the party to produce the best evidence which the nature of the case admits, having been treated in a preceding volume,3 it is sufficient here to observe, that the principles and distinctions there stated, are recognised as well in Equity as at Law. In some cases, however, which fall under the maxim- Omnia præsumuntur, in odium spoliatoris - Courts of Equity will go beyond Courts of Law, in giving relief, by reason of the greater flexibility of its modes of remedy. Thus, where the king had a good title in reversion at law, as against the heir in tail, but "the deeds whereby the estate was to come to him were not extant, but very vehemently suspicious to have been suppressed and withholden by some under whom the defendants claimed;" it was decreed, that the king should hold and enjoy the land, until the defendants should produce the deeds.4

1 Gresley, Eq. Evid. p. 236; Tyrwhitt v. Wynne, 2 B. & A. 554. And see ante, Vol. 1, § 52.

2 Gresley, Eq. Evid. p. 237, 238.

3 Ante, Vol. 1, § 82-97, 105, 161, 168.

4 Rex v. Arundel, Hob. 109, commented on, 2 P. Wms. 748. And see Dalston v. Coatsworth, 1 P. Wms. 731, and cases there collected; Saltern v. Melhuish, Ambl. 247; Ante, Vol. 1, § 37.