* * *

short, the answer, when used as evidence, is subject to the same proper criticism, and the same legal infirmities, that attach to all evidence, in whatsoever form it is introduced in court. All that the orator is bound to do is to meet and overcome the answer by competent proof. This proof may require one or twenty witnesses. It may be made without any. 'It is important to state here the true import of the rule in equity that an answer responsive to the allegations and charges made in a bill, and which contains clear and positive denials of them, must prevail, unless it is overcome by the testimony of two witnesses, or at least by one witness and attendant circumstances. The rule as stated has reference to an answer opposed only by the testimony of one witness; but if the evidence in the cause, no matter what it may be, is sufficient to outweigh the answer, the plaintiff may have a decree in his favor.' * **The foregoing extract from Mitford, who has been justly called the 'master of equity pleading,' states the rule in satisfactory terms. Another rule relating to the answer as evidence is important to be noticed here. The authorities all agree that the answer is evidence only when it is a direct and explicit denial of the allegations made in the bill. If it denies such allegations on information and belief, it is not evidence. If the defendant sets up other matters in confession and avoidance of the charges made in the bill, such other matters are not evidence. Such allegations in the answer are mere pleading, and, if relied upon by the defendant, must be made out by proof, if the answer is traversed."92 It is held that the maxim, Falsus in uno, falsus in omnibus, applies to the credit to be given to a sworn answer.93 § 653.

Answers on information and belief.

The rule that responsive allegations in the answer are con

92 Viele v. Blodgett, 49 Vt. 270; Fant v. Miller, 17 Grat. (Va.) 187. See, also, Carpenter v. Providence Washington Ins. Co., 4 How. (U. S.) 219; Savings & Loan Ass'n v. Davidson, 97 Fed. 696; Morris v. White, 36 N. J. Eq. 324.

93 Roundtree v. Gordon, 8 Mo. 19; Fant v. Miller, 17 Grat. (Va.) 187.

clusive evidence in favor of the defendant, unless overcome by the testimony of two witnesses, or their equivalent, cannot be invoked when the answer is upon information and belief.9* Such an answer is merely a pleading.95 The rule applies only where the denial is positive, and does not apply when the denial is as to belief, or is matter of inference or argument. The denial must be made by a party cognizant of the transaction out of which the complainant's equity arose.97 The rule has no application where the denials are matters of which the defendant could not, from his situation, have known, or be required to know, or does not know.98 Where the denial is positive, the court will not inquire into the grounds of the denial.99

§ 654. Answer by corporation.

96

The answer of a corporation, under its corporate seal, has the same force and effect as evidence as the answer of an individual not under oath would have in like cases, and no other or greater. 100 The answer of a corporation, sworn to by the proper

94 Slater v. Maxwell, 6 Wall. (U. S.) 268; Cunningham v. Ferry, 74 Ill. 426; Socher's Appeal, 104 Pa. 609; Berry v. Sawyer, 19 Fed. 286; Rogers v. French, 19 Ga. 316; Corporation for Relief of Poor Children of City of New Brunswick v. Eden (N. J. Eq.) 50 Atl. 606; Lawrence v. Lawrence, 21 N. J. Eq. 317; Hanchett v. Blair, 100 Fed. 817. 95 Earle v. Art Library Publishing Co., 95 Fed. 544.

96 Toulme v. Clark, 64 Miss. 471, 1 So. 624.

97 Robinson v. Jefferson, 1 Del. Ch. 244; Watson v. Palmer, 5 Ark. 501.

98 Garrow v. Carpenter, 1 Port. (Ala.) 359; Loomis v. Fay, 24 Vt. 240; Clark's Ex'rs v. Van Riemsdyk, 9 Cranch (U. S.) 153; Purvis v. Woodward, 78 Miss. 922, 29 So. 917. See Carpenter v. Providence Washington Ins. Co., 4 How. (U. S.) 185; Coale v. Chase, 1 Bland (Md.) 136. See, for effect of United States Equity Rule 41, Blair v. Silver Peak Mines, 93 Fed. 332.

99 Toulme v. Clark, 64 Miss. 471, 1 So. 624; McGehee v. White, 31 Miss. 42.

100 Maryland & New York Coal & Iron Co. v. Wingert, 8 Gill (Md.) 170; Lovett v. Steam Saw Mill Ass'n, 6 Paige (N. Y.) 54; Baltimore & O. R. Co. v. City of Wheeling, 13 Grat. (Va.) 40; Smith v. St. Louis Life Ins. Co., 2 Tenn. Ch. 599. The answer of a corporation under its corporate seal, which the complainant does not require to be verified by the officers of the company, for the purposes of discovery. is not

officer having personal knowledge of the fact, is within the equity rule as to the weight of a responsive answer as evidence, but not where the officer making it is one not having such personal knowledge.101

§ 655. Failure to answer fully.

The general rule is that a material fact which is neither expressly admitted nor denied by the answer is deemed to be controverted.102 By some authorities it is held, however, that the entire silence of the defendant as to a fact alleged is to be construed as an admission,103 and that, where a bill alleges a fact within the knowledge of the defendant, he must answer it, or it will be taken as true.104

§ 656. How answer to be read.

In courts of equity, the rule is that, where a complainant

evidence in favor of the corporation, although it is responsive to the bill. Lovett v. Steam Saw Mill Ass'n, 6 Paige (N. Y.) 54. See supra, § 323.

101 Gantt v. Cox & Sons Co., 199 Pa. 208, 48 Atl. 992; Riegel v. American Life Ins. Co., 153 Pa. 134, 25 Atl. 1070, 19 L. R. A. 166; Kane v. Schuylkill Fire Ins. Co., 199 Pa. 198, 48 Atl. 989; Carpenter v. Provi. dence Washington Ins. Co., 4 How. (U. S.) 219; Savings & Loan Soc. v. Davidson, 97 Fed. 696. In some cases it has been held that the answer of a corporation, if responsive to the bill, though made under seal without oath, is competent evidence, and cannot be overturned by the testimony of one witness alone. Salmon v. Clagett, 3 Bland (Md.) 141, 165; Haight v. Morris Aqueduct, 4 Wash. C. C. 161, Fed. Cas. No. 5,902.

102 Glos v. Randolph, 133 Ill. 197, 24 N. E. 426; Blakeney v. Ferguson, 14 Ark. 641; Tate v. Conner, 17 N. C. 224; Keaton v. McGwier, 24 Ga. 217; Bank of Jamaica v. Jefferson, 92 Tenn. 537, 22 S. W. 211.

103 Lee v. Stiger, 30 N. J. Eq. 610; Pinnell v. Boyd, 33 N. J. Eq. 190; Sanborn v. Adair, 29 N. J. Eq. 338; Grady v. Robinson, 28 Ala. 289. 104 Bledsoe v. Martin, 5 J. J. Marsh. (Ky.) 520; Smilie v. Siler's Adm'r, 35 Ala. 88; Kirkman v. Vanlier, 7 Ala. 217; Mitchell v. Maupin, 3 T. B. Mon. (Ky.) 185; Hagthorp v. Hook's Adm'rs, 1 Gill & J. (Md.) 270, which questions the propriety of the doctrine; Smitheal v. Gray, 1 Humph. (Tenn.) 491, 34 Am. Dec. 664. See supra, § 314, where this question is fully considered, and other authorities are cited, and modifications, in some jurisdictions, of the general rule referred to.

chooses to read a passage from the defendant's answer, he reads all the circumstances stated in the passage, and, if it contains a reference to any other passage, that other passage must be read also, but it is to be read only for the purpose of explaining, so far as explanation may be necessary, the passage previously read, in which reference to it is made. If, in the passage which is referred to, new facts and circumstances are introduced, in grammatical connection with that which must be read for the purpose of explaining the reference, the facts and circumstances so introduced are not to be considered as read.105 The defendant, also, may read any other passage in his answer connected in meaning with that which the complainant has read.106 Want of grammatical connection will not prevent another part being read, if it is connected in meaning, and is explanatory of the other, and merely grammatical connection will not entitle another part to be read if it have no such explanatory relation, 107 Where a complainant has been compelled to read an allegation which makes against his case, he may read other evidence disproving such allegation.108 At law, when a declaration or conversation of a party is to be proved against him, the whole of what is said at the same time, and in relation to the same subject, should be taken together.109 The rule in chancery is the same when an answer or other declaration of the party is introduced collaterally, and merely by way of evidence.110 Upon a bill for discovery only, the answer being produced as evidence, the whole must be read. But when, upon the hearing of a bill for relief, passages are read from the answer, which is replied to, they are read, not as "evidence," in the technical sense, but merely as a pleading to show what the

105 Bartlett v. Gillard, 3 Russ. 157. See, also, Nurse v. Bunn, 5 Sim. 225; Calcott v. Maher, 2 Moll. 316; Ormond v. Hutchinson, 13 Ves. 53: 1 Taylor, Ev. § 660.

106 3 Greenleaf, Ev. § 281; Rude v. Whitchurch, 3 Sim. 562; Skerrett v. Lynch, 2 Moll. 320.

107 3 Greenleaf, Ev. § 281; Davis v. Spurling, 1 Russ. & M. 64.

108 3 Greenleaf, Ev. § 281; Price v. Lytton, 3 Russ. 206. But see Beech

v. Haynes, 1 Tenn. Ch. 569.

109 3 Greenleaf, Ev. § 290. 110 3 Greenleaf, Ev. § 290

defendant has admitted, and which therefore needs not to be proved, and hence the complainant is not required to read more than the admissions.111

§ 657. Method of taking evidence.

In the absence of statutory modifications, there is a material diversity between proceedings in equity and at common law in the manner of taking the testimony of witnesses, the latter requiring the examination to be open and viva voce, while in equity it is taken secretly and in writing.112 The origin of this distinction was the difference of the objects which the two tribunals had in view. The object at law was to enable the jury to give their verdict on the issues joined between the parties. They were not required to decide on the merits of the case generally, or to elicit a legal conclusion from a series of facts, but were to give their verdict on the balance of testimony, affirmative and negative, direct and indirect, submitted to them on the issues joined.113 The trial and determination of disputed issues are not the principal objects of evidence in equity, for the nature of the questions there litigated does not generally give rise to such issues, and those which do occur, if they present any serious difficulty of trial, are generally referred to a verdict of a jury. The principal objects there contemplated are, first, to elicit a sworn detail of facts, on which the court may adjudge the equities, and, secondly, to preserve it in an

111 Beech v. Haynes, 1 Tenn. Ch. 569; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 91; 3 Greenleaf, Ev. § 290. "The distinction between a bill for discovery and a bill for relief, in the application of the rule above stated, is more strikingly apparent when a bill for discovery, after a discovery is obtained, is by amendment converted into a bill for relief. The defendant in such case being permitted to put in a new answer, the former is considered as belonging to a former suit, and therefore is permitted to be read as an answer to a bill of discovery, as evidence, and not as part of the defense or admission upon which the bill proceeds." 3 Greenleaf, Ev. § 291; Butterworth v. Bailey, 15 Ves. 358. See Lousada v. Templer, 2 Russ. 561.

112 3 Greenleaf, Ev. § 251.

113 Adams, Eq. 365.

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