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. Where a material averment in a bill is neither admitted nor denied by the answer, it must be supported by proof. 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 Edition), 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.5 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

5 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.

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.

9 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. 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.

title to real property, a complainant must recover upon the strength of his own title, and not upon the weakness of the defendant's.17 If the answer admits a fact alleged in the bill, but insists on matter of avoidance, the complainant need not prove the fact admitted, but the defendant must prove the matter in avoidance.18 When the burden of proving a fact is on the defendant, if the proof adduced leaves it in a state of doubt and uncertainty, the fact cannot be considered established.19 If the testimony in the cause is equally balanced, the party who holds the affirmative as to the disputed fact to which the testimony relates must fail.20 The court will not weigh testimony by the number of witnesses alone, for circumstances and known facts may often establish the truth more conclusively than the oaths of the parties or the written depositions.21

§ 638. Order of putting in evidence.

The order of the introduction of evidence is in the discretion of the court. The adherence to a prescribed order is not as essential in chancery cases as at law, where issues are tried by the jury.2

22

§ 639. Judicial notice.

Matters judicially noticed need not be proved.28

17 Pickens v. Harper, Smedes & M. Ch. (Miss.) 539.

18 Clarke v. White, 12 Pet. (U. S.) 178.

19 Brandon v. Cabiness, 10 Ala. 155.

20 Rogers v. Traders' Ins. Co., 6 Paige (N. Y.) 583; Hargraves v. Miller's Adm'x, 16 Ohio, 338.

21 Benter v. Patch, 7 Mackey (D. C.) 590. See, on question of chancellor weighing testimony, 3 Greenleaf, Ev. §§ 375-378.

22 Thompson, Trials, § 344; Jones v. Galbraith (Tenn. Ch. App.) 59 S. W. 350; Smith v. Britton, 4 Humph. (Tenn.) 201; Goss v. Turner, 21 Vt. 437.

23 1 Greenleaf, Ev. §§ 4-7; 3 Greenleaf, Ev. §§ 269, 271. It is not within the scope of this work to treat of matters judicially noticed. Reference is made to the various works on evidence. See supra, § 103.

§ 640. Admissions in pleadings.

Matters admitted in pleadings cannot be controverted by the party making the admissions.24 The admissions in a bill need not be proved by the defendant,25 and whatever is admitted in the answer need not be proved by the complainant;20 but a decree cannot be entered against infant defendants without proof to sustain the case against them, even though the guardian ad litem admits the charges in the bill to be true.27 The rule that evidence is inadmissible to prove or disprove facts already admitted in the pleadings applies only where such 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.28 It is said that an original bill, not verified by the complainant, prepared by his solicitor under a mistaken view of the facts, is not admissible against the complainant, where an amended bill was subsequently filed.29 It is said that the answer of the defendant, being a deliberate statement on oath, is evidence against him of all matters it contains, and is extremely strong, though not so entirely conclusive as to prevent him from showing that it was made under an innocent mistake. It may be read,

24 3 Greenleaf, Ev. § 275; Wood v. Ziegler, 99 Tenn. 515, 42 S. W. 447; Martin v. Reese (Tenn. Ch. App.) 57 S. W. 419; Evans v. Huffman, 5 N. J. Eq. 354; Toney v. Moore, 4 Stew. & P. (Ala.) 347; Home Ins. & Banking Co. v. Myer, 93 Ill. 271; Weider v. Clark, 27 Ill. 251; Fergus v. Tinkham, 38 Ill. 407.

25 Peacock v. Terry, 9 Ga. 137; Lawless v. Jones, 1 A. K. Marsh. (Ky.) 16.

26 Justices of Inferior Court of Pike County v. Griffin & West Point Plank Road Co., 15 Ga. 39; Surget v. Byers, Hempst. 715, Fed. Cas. No. 13,629; Clarkson v. Louderback, 36 Fla. 660, 19 So. 887; Home Ins. & Banking Co. v. Myer, 93 Ill. 271.

27 Chaffin v. Kimball's Heirs, 23 Ill. 36; McClay v. Norris, 9 Ill. 370. See, also, Bulkley v. Van Wyck, 5 Paige (N. Y.) 536. See supra, § 318; post, § 709.

28 3 Greenleaf, Ev. § 358, citing Gresley, Eq. Ev. pp. 237, 238.

20 Wenegar v. Bollenbach, 180 Ill. 222, 54 N. E. 192; Holland v. Rog ers, 33 Ark. 251; Mecham v. McKay, 37 Cal. 154. See 3 Greenleaf, Ev. § 275.