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notwithstanding the complainant, by his replication, has denied the truth of the answer. Admissions in an unsworn answer are conclusive against the defendant in the pending cause, though unavailable collaterally. Allegations in an answer not under oath, which are mere declarations made by the defendant in his own interest, have no evidential effect.82 It is only the answer of a person sui juris that can be treated as an admission of the facts, so far as to dispense with other proof of them. The answer of an infant by his guardian cannot be read against him.33 If, after an infant comes of age, he unreasonably delays to apply for leave to make a better defense, he will be taken to have confirmed his former answer, and it may even be read against him. Or, if his father, being an heir at law and of age, has, by his answer, admitted the due execution of the will of his ancestor, but died before the cause was brought to a hearing, the answer may be read against the infant as an admission of the will, and sufficient to establish it.34 Answers made by guardians of idiots, persons of perma

30 3 Greenleaf, Ev. § 277. See Goodwin v. McGehee, 15 Ala. 232. 31 Craft v. Schlag, 61 N. J. Eq. 567, 49 Atl. 431; Manley v. Mickle, 55 N. J. Eq. 567, 37 Atl. 738. "The manner of statement in the answer is sometimes material to its effect as an admission against the defendant, dispensing with other proof. For a mere statement that the defendant has been informed that a fact is as stated, without expressing his belief, will not be regarded as an admission of the fact; but if he answer that he believes or is informed and believes that the fact is so, this will be deemed a sufficient admission of the fact, unless this statement is coupled with some qualifying clause, tending to the contrary, the general rule in equity on this point being that what the defendant believes the court will believe. But an exception to this rule has been admitted in regard to the belief of an heir at law of the due execution of a will by his ancestors; it being the course of the court to require either a direct admission, or proof in the usual manner." 3 Greenleaf, Ev. § 282.

32 Craft v. Schlag, 61 N. J. Eq. 567, 49 Atl. 431.

33 3 Greenleaf, Ev. § 278; Segard v. Sheffield, 2 Atk. 377; Eggleston v. Speke, 3 Mod. 258; Wrottesley v. Bendish, 3 P. Wms. 237; Eaton v. Tillinghast, 4 R. I. 276; Benson v. Wright, 4 Md. Ch. 278.

34 3 Greenleaf, Ev. § 279.

nett v. Leigh, 1 Dickens, 89; Parks, 3 Md. Ch. 65.

See Cecil v. Salisbury, 2 Vern. 224; Ben-
Lock v. Foote, 4 Sim. 132; Robertson v.

nently weak intellect, and those who, by reason of age or infirmity, are reduced to a second infancy, may be read against them.35

§ 641. Bill in another suit as evidence.

A bill in chancery is not evidence against the party in whose name it is filed, unless his privity is shown. Where that privity is established, the bill is admissible to prove the fact that such a suit was instituted, and what was the subject of it, but it is not evidence, by way of admission against the party by whom it was filed, of the truth of the facts alleged or stated in it.36 A bill not under oath, nor signed by the complainant, but only by his solicitors, is incompetent, in a suit by the same complainant against another party, as an admission by the complainant that he has no cause of action against the defendant.37 It is not evidence of the facts stated in it against the complainant, unless sworn to by him. Its allegations are to be considered as mere suggestions of counsel.38 A bill is not evidence against the party filing it unless privity is shown, and cannot be so regarded when filed by the counsel of a corporation.39

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35 3 Greenleaf, Ev. § 280; Leving v. Caverly, Finch, Prec. Ch. 229. See Stanton v. Percival, 35 Eng. Law & Eq. 1.

36 Boileau v. Rutlin, 2 Exch. 665, 12 Jur. 899; Doe d. Bowerman v. Sybourn, 7 Term R. 2; Combs v. Hodge, 21 How. (U. S.) 397. See 3 Greenleaf, Ev. § 274.

37 3 Greenleaf, Ev. § 274; Delaware County Com'rs v. Diebold Safe & Lock Co., 133 U. S. 473; Wenegar v. Bollenbach, 180 Ill. 222, 54 N. E. 192; Combs v. Hodge, 21 How. (U. S.) 397; Hope v. Allis, 115 U. S. 363; Dennie v. Williams, 135 Mass. 28.

38 Adams v. McMillan, 7 Port. (Ala.) 73; McRea v. Insurance Bank of Columbus, 16 Ala. 755; Durden v. Cleveland, 4 Ala. 225; Rankin v. Maxwell's Heirs, 2 A. K. Marsh. (Ky.) 488, 12 Am. Dec. 431. See Gresley, Eq. Ev. 322; Stump v. Henry, 6 Md. 201.

39 Vanneman v. Swedesboro Loan & Building Ass'n, 42 N. J. Eq. 263, 7 Atl. 676, citing 3 Greenleaf, Ev. § 278; Boileau v. Rutlin, 2 Exch. 665, 12 Jur. 899; Doe d. Bowerman v. Sybourn, 7 Term R. 2; Sweet V. Tuttle, 14 N. Y. 465. The established rule is to consider a bill in quity as the mere allegation of counsel, unless the party is connected with it by proof showing a recognition of its contents, as would be the case if the bill was verified by complainant's oath. It is possible

§ 642. Pleas and demurrers as evidence.

It is said that a plea, being always in avoidance of and not responsive to the bill, stands for nothing as evidence of the facts stated in it.40 "But a demurrer

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does not ad

So it is as to pleas

in chancery; these, as well as demurrers, being merely hypothetical statements, that, supposing the facts to be as alleged, the defendant is not bound to answer.' 9741

§ 643. Cross bill as evidence.

If a cross bill is taken as confessed, it may be used as evidence against the complainant in the original suit on the hearing, and will have the same effect as if he had admitted, in an answer, the same facts.12

§ 644. Answer to cross bill.

The answer of the complainant in the original cause to a cross bill which has been dismissed cannot be read in evidence in his own favor.43 The answer to a cross bill filed for discovery in aid of the defense cannot be used by the party making it, unless the complainant in the cross bill shall first produce it in evi

other modes of recognition might be shown. Durden v. Cleveland, 4 Ala. 225. A record in chancery in a suit between the same parties, and relating to the same subject of inquiry, is admissible in evidence in a subsequent suit for the purpose of proving antecedent ad missions of either party to rights again involved in controversy. A bill of complaint sworn to by complainant is admitted in evidence on precisely the same grounds as the answer. Mobberly v. Mobberly, 6 Md. 376. See, also, Elliott v. Hayden, 104 Mass. 180; Taylor, Ev. (5t! Ed.) §§ 759, 1560; Gresley, Eq. Ev. 303; Central Bridge Corp. v. City c Lowell, 15 Gray (Mass.) 106; Bliss v. Nichols, 12 Allen (Mass.) 443.

40 Gernon v. Boccaline, 2 Wash. C. C. 199, Fed. Cas. No. 5,366; Tilgh man v. Tilghman, 1 Baldw. 464, Fed. Cas. No. 14,045; 1 Greenleaf, Ev § 551.

41 1 Greenleaf, Ev. § 551; Tomkins v. Ashby, 1 Mood. & M. 32.

42 2 Barbour, Ch. Pr. 135; White v. Buloid, 2 Paige (N. Y.) 164: Griswold v. Simmons, 50 Miss. 137; Kidder v. Barr, 35 N. H. 235. 48 Saffold v. Horne, 71 Miss. 762, 15 So. 639.

dence. If the defendants have brought a cross bill, including, as defendants thereto, the original complainants and a third person, who is so interested in the subject-matter of the controversy on the original bill as not to be a competent witness therein for the complainants, the answer of such third person to the cross bill can in no way be used by the complainants in the original bill to sustain the case made by them on that bill.45

§ 645. Answer as evidence-In general.

In the absence of a statute or rule of court, it is a general rule that the answer of the defendant, so far as responsive to the bill, must be taken as true, unless it be overcome by two witnesses, or one with strong corroborating circumstances.46 This rule applies where an issue out of chancery is tried by a jury.47 When an answer is traversed, and the case set down for hearing on bill, answer, and traverse, the averments in the answer will only be taken as proof so far as they are responsive to the bill.48 An answer, in order to be evidence so as to require something more than the evidence of a witness to overcome it, must be distinct, positive, and of matter which may be within

44 Kidder v. Barr, 35 N. H. 235; Phillips v. Thompson, 1 Johns. Ch. (N. Y.) 131. "Where a cross bill is answered, and the matter is brought to a hearing, and the answer used, it is evidence for the party making it so far as responsive to the bill." Kidder v. Barr, 35 N. H. 235.

45 Blodgett v. Hobart, 18 Vt. 414.

46 Story, Eq. Pl. § 849; Vigel v. Hopp, 104 U. S. 441; Marshall v. Croom, 52 Ala. 554; White v. Walker, 5 Fla. 478; Feigley v. Feigley, 7 Md. 537, 61 Am. Dec. 375; Johnson v. Richardson, 38 N. H. 353; Chance v. Teeple, 4 N. J. Eq. 173; Pusey v. Wright, 31 Pa. 387; Gray v. Faris, 7 Yerg. (Tenn.) 155; Kennedy v. Baylor, 1 Wash. (Va.) 162. 47 Powell v. Manson, 22 Grat. (Va.) 177.

48 3 Greenleaf, Ev. § 284; 1 Barbour, Ch. Pr. 317; Wilkinson v. Bauerle, 41 N. J. Eq. 636, 7 Atl. 514; Viele v. Blodgett, 49 Vt. 270, 277; United States v. Ferguson, 54 Fed. 28; Cooper v. Tappan, 9 Wis. 361; Voorhees v. Voorhees' Ex'r, 18 N. J. Eq. 223; Freeman v. Tatham, 5 Hare, 329; Bartlett v. Gillard, 3 Russ. 149; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62.

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the knowledge of the defendant.49 It is only conclusive as to facts directly and particularly averred, and not as to matters of belief, unless the grounds of belief are disclosed and deemed sufficient.50 The answer of a defendant, professing a want of knowledge of the facts of the bill, is not evidence against the complainant. Its only legal effect is to compel him to establish his case by testimony.51 An answer is not evidence for the defendant when it shows on its face that the defendant had no personal knowledge of the matters alleged.52 Answers to specific interrogatories in a bill are evidence for the defendant making the answers. 53 It is said that no presumption will be indulged against evidence furnished by the defendant's answers to special interrogatories, on account of its being furnished by an interested party. Where every allegation of fraud in a bill to set aside a sale was denied, the defendants were allowed the full benefit of their answer, so far as it was responsive to the bill.55 The rule which makes responsive answers proof for the defendant applies only to fair answers, and not to those which, upon their face, are incredible.56 An answer, to be evidence for

49 Bellows v. Stone, 18 N. H. 465; Biscoe v. Coulter, 18 Ark. 423; Copeland v. Crane, 9 Pick. (Mass.) 78; Parkman v. Welch, 19 Pick. (Mass.) 231; Drury v. Conner, 6 Har. & J. (Md.) 288.

50 Copeland v. Crane, 9 Pick. (Mass.) 73. See McGuffie v. Planters' Bank, Freem. Ch. (Miss.) 383; Rodgers v. Rodgers, 1 Paige (N. Y.) 426.

51 Drury v. Conner, 6 Har. & J. (Md.) 288.

52 Fryrear v. Lawrence, 10 Ill. 325; Barclay v. Dawson, 26 Ark. 417; Deimel v. Brown, 136 Ill. 586, 27 N. E. 44; Lawrence's Ex'rs v. Lawrence's Adm'rs, 4 Bibb (Ky.) 357; Watson v. Palmer, 5 Ark. 501.

53 Money v. Dorsey, 7 Smedes & M. (Miss.) 15; Eberly v. Groff, 21 Pa. 251; Jones' Heirs v. Perry, 10 Yerg. (Tenn.) 59, 30 Am. Dec. 430; Shultz v. Hansbrough, 33 Grat. (Va.) 567; Fant v. Miller, 17 Grat. (Va.) 187; Shurtz v. Johnson, 28 Grat. (Va.) 657.

54 Petrie's Ex'rs v. Wright, 6 Smedes & M. (Miss.) 647; Clason v. Morris, 10 Johns. (N. Y.) 524, 542. See, however, Viele v. Blodgett, 49 Vt. 270.

55 Allen v. Cole, 9 N. J. Eq. 286, 59 Am. Dec. 416.

56 Stevens v. Post, 12 N. J. Eq. 408; Deimel v. Brown, 136 Ill. 586, 27 N. E. 44; Fryrear v. Lawrence, 10 Ill. 325. But see Hartley's Appeal, 103 Pa. 23.

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