After the issues at law have been tried, the cause, unless a new trial is moved for and granted, must be heard for further directions upon the equity reserved.87 The cause then comes on to be heard in the regular course, when such final or other decree as the case calls for will be pronounced.88 "A verdict upon an issue ordered by a court of equity is in no just sense. final upon the facts it finds, or binding upon the judgment of the court. The court may, at its pleasure, set it aside, and grant a new trial, or, disregarding it, may proceed to hear the cause, and decide in contradiction to the verdict, or it may adopt the verdict, sub modo, and give it a limited effect only, but it can never be known what effect is given to the verdict, or whether any is given to it, until the subsequent hearing upon the merits, and a decree rendered thereon by the court. Under such circumstances, it is plain to me that this verdict is not admissible in evidence, for it has not been sanctioned or established by the court, and, without such sanction, it is no proof of any fact but that it was actually rendered in the case, and not proof of the facts found thereby.'

9789

871 Barbour, Ch. Pr. 460; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1146; Allen v. Blunt, 3 Story, 742, Fed. Cas. No. 216. By the English practice, this could not be done until after the first four days of the term next after the trial have elapsed, in order that the party against whom the verdict had been found might have an opportunity of moving for a new trial. 1 Barbour, Ch. Pr. 461. This practice was afterwards changed, and the cause allowed to be set down as soon as the trial had taken place. Rodgers v. Nowill, 6 Hare, 338.

881 Barbour, Ch. Pr. 461. See Prudden v. Lindsley, 29 N. J. Eq. 615; Armstrong v. Armstrong, 3 Mylne & K. 45; Pember v. Mathers, 1 Brown Ch. 52; East India Co. v. Donald, 9 Ves. 275: Legh v. Hollo. way, 8 Ves. 213; Woodley v. Johnson, 1 Moll. 394.

89 Mr. Justice Story, in Allen v. Blunt, 3 Story, 742, Fed. Cas. No. 216. In Ogle v. Adams, 12 W. Va. 213, 224, is found a form of a decree on an issue out of chancery: "This cause came on this day to be further heard upon the bill and answer and replication thereto, the depositions of witnesses, and the verdict of the jury upon the issue out of chancery in this cause, and was argued by counsel. On consideration whereof,

the said verdict is approved and confirmed. The court doth adjudge, order, and decree," etc.

Costs of feigned issues: These are usually in the discretion of the court. 1 Barbour, Ch. Pr. 462; 2 Harrison, Ch. Pr. 570.

On the question of costs, see Beames, Costs, 234, appendix xv., 369; Standen v. Edwards, 1 Ves. Jr. 135; Berney v. Eyre, 3 Atk. 387; Wright v. Wright, 5 Sim. 449; White v. Wilson, 13 Ves. 87; Webb v. Claverden, 2 Atk. 424; Scaife v. Scaife, 4 Russ. 309; Bearblock v. Tyler, 1 Jac. & W. 225; Anonymous, 2 P. Wms. 68; Edwin v. Thomas, 1 Vern. 489: White v. Lisle, 4 Madd. 214; Devie v. Brownlow, 2 Dickens, 796. (648)

CHAPTER XXXIV.

EVIDENCE.

§ 636. In general.

As soon as the cause is at issue by the filing of a replication, both parties may proceed to take testimony for the purpose of establishing their respective cases. If no replication is filed, the answer is taken as true, and therefore the defendant needs no proof, and the complainant, not having replied, cannot offer any.1 A material fact alleged in the bill and denied by the answer must be proved.2 Where a material averment in a bill is neither admitted nor denied by the answer, it must be supported by proof.3 Matter alleged in an answer by way of avoidance, and not responsive to the bill, must be supported by proof where a general replication has been filed. It is held that evidence of admissions on the part of a complainant tending di

11 Barbour, Ch. Pr. 254. It is not within the scope of this work to consider other than most briefly the subject of evidence in equity causes. Reference is made to Gresley's Equity Evidence; Greenleaf, Evidence, volume 3 of which, on pages 237-370 of the 16th edition (sections 249-385), treats fully of evidence in proceedings in equity; Taylor, Evidence; Rice, Evidence; American Digest (volume 20, Century Edi tion), where the American decisions from 1658 to 1896 on evidence are digested.

2 Greenwade v. Greenwade, 3 Dana (Ky.) 495; Vanpelt v. Hutchinson, 114 Ill. 435, 2 N. E. 491.

3 Young v. Grundy, 6 Cranch (U. S.) 51; Cushman v. Bonfield, 139 Ill. 219, 28 N. E. 937. See Joice v. Taylor, 6 Gill & J. (Md.) 54, 25 Am. Dec. 325. The rule is otherwise on the question of the dissolution of an injunction. Young v. Grundy, 6 Cranch (U. S.) 51.

4 Simson v. Hart, 14 Johns. (N. Y.) 63; Humes v. Scruggs, 94 U. S. 22; Brooks v. Gillis, 12 Smedes & M. (Miss.) 538; Shields v. Trammell, 19 Ark. 51; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62; Wheat v. Moss, 16 Ark. 243.

rectly to contradict his testimony on a material matter in issue is admissible, although not set out in the answer. The rule is well settled that every material fact on either side must be set up in the pleadings, and that the court can no more consider what is proved, but not alleged, than what is alleged, but not proved. The allegations and proofs must set forth and support the same cause of action. A party cannot state one case in his pleadings, and make a different one by his proofs. The rule that the proof and pleadings must correspond is to be applied equitably, and not rigidly, especially when it is appealed to on behalf of a party in full possession of the facts at all times, and therefore not misled by a pleading which, though inaccurate in some details, yet contains sufficient averments to support a claim for the relief prayed for. A variance between pleadings and proof, when not material to the rights of the parties, or upon a point not affecting the merits, is not fatal.9

§ 637. General rules of evidence in equity.

The rules of evidence in courts of law and in courts of equity are generally the same.10 Thus, parol testimony is generally

Lyford v. Gove, 44 N. H. 253, citing Gresley, Eq. Ev. part III. c. 3; 3 Greenleaf, Ev. § 323, note. See, as to admissions of defendants, supra, § 314.

Gresley, Eq. Ev. (Ed. 1837) 159, 161; Anderson v. Northrop, 30 Fla. 612, 12 So. 318; Maher v. Bull, 44 Ill. 97; Moores v. Moores, 16 N. J. Eq. 275; James v. McKernon, 6 Johns. (N. Y.) 543; Foster v. Goddard, 1 Black (U. S.) 506; Tripp v. Vincent, 3 Barb. Ch. (N. Y.) 613; Harrison v. Nixon, 9 Pet. (U. S.) 483; Boone v. Chiles, 10 Pet. (U. S.) 183; Clarke v. Turton, 11 Ves. 240; Whaley v. Norton, 1 Vern. 483; Smith v. Clarke, 12 Ves. 477.

7 McKay v. Bissett, 10 Ill. 499; South Park Com'rs v. Kerr, 13 Fed. 503; Graham v. Tankersley, 15 Ala. 634; White v. Morrison, 11 Ill. 361; Piatt v. Vattier, 9 Pet. (U. S.) 405.

8 Crawford v. Moore, 28 Fed. 824, citing Texas v. Hardenberg, 10 Wall. (U. S.) 68.

Booth v. Wiley, 102 Ill. 84.

10 Cary v. Herrin, 59 Me. 358; Lake v. Phillips, 1 Ch. Rep. 59; Dwight

v. Pomeroy, 17 Mass. 303, 9 Am. Dec. 148; Manning v. Lechmere, 1

inadmissible, both at law and in equity, to vary a written instrument.11 It is said that courts of equity admit of an exception to the general rule where a mistake is alleged.12 A court of chancery is warranted in making the same deductions from facts as a jury might make.13 There is, as a general rule, no difference in respect to the burden of proof between proceedings at law and in equity. In both, the party maintaining the affirmative of the issue usually has it cast upon him.14 The rule does not apply, however, in case of fiduciary and confidential relations between the parties.15 The complainant must show, by his allegations and proofs, his right to a decree, before the defendant can be required to sustain the affirmative allegations of his answer.16 In a suit to establish

Atk. 453; Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 425; Harmer v. Gwynne, 5 McLean, 313, Fed. Cas. No. 6,075. See Barraque v. Siter, 9 Ark. 545; Buttlar v. Buttlar, 57 N. J. Eq. 645, 42 Atl. 755.

11 Hunt v. Rousmanier's Adm'rs, 8 Wheat. (U. S.) 174; Peterson v. Grover, 20 Me. 363; Elysville Mfg. Co. v. Okisko Co., 1 Md. Ch. 392. See 3 Greenleaf, Ev. §§ 360-367, considering the modifications of the general rule. However closely a court of equity may be disposed to adhere to the salutary rule of law that parol evidence is not admissible to vary, contradict, or control a written instrument, it must necessarily exercise more liberality in admitting evidence in order to reach the equity of the case than would be allowed at law. Stoutenburgh v. Tompkins, 9 N. J. Eq. 336. Courts of equity have manifested much more liberality in admitting parol evidence in cases of specific performance to resist than to enforce it, yet the principle has never been established by authority that such evidence is admissible, even in defense, to vary or contradict a written agreement. Stoutenburgh v. Tompkins, 9 N. J. Eq. 336. A defendant cannot resist a specific performance on the ground that the agreement entered into differs from that which was reduced to writing, without showing that the difference was the result of fraud, accident, mistake, or surprise. Stoutenburgh v. Tompkins, 9 N. J. Eq. 336. See 3 Greenleaf, Ev. § 361. 12 Peterson v. Grover, 20 Me. 363.

13 Thomas v. Visitors of Frederick County School, 7 Gill & J. (Md.) 369; 3 Greenleaf, Ev. § 272.

14 Pusey v. Wright, 31 Pa. 387; Evans v. Winston, 74 Ala. 349; Beecher v. Brookfield, 33 Ark. 259; Seamans v. Burt, 11 R. I. 320; Miller v. Lamar, 43 Miss. 383.

15 3 Greenleaf, Ev. § 253.

16 Bryant v. Groves, 42 W. Va. 10, 24 S. E. 605.