'he defendant, must be an answer to a fact averred in the bill, and not to a mere inference of law.57 It must not be evasive.5 If the whole subject-matter of the statement or allegations in the answer might have been left out, then the allegations in the answer upon that subject are not responsive to the bill; but if the omission of some statement upon that subject would furnish just ground of exception to the answer, then the statement, to the extent to which it is required, and whatever its character, whether affirmative or negative, is but a response to the inquisition of the complainant.59 The true test would seem to be whether the question answered would be proper in a trial at law, whether it would be relevant, such as the witness would be bound to answer, and the answer be competent testimony." 60

57 Robinson v. Cathcart, 2 Cranch, C. C. 590, Fed. Cas. No. 11,946. 58 3 Greenleaf, Ev. § 287.

59 Bellows v. Stone, 18 N. H. 465, quoted in Eaton's Appeal, 66 Pa. 483.

60 Dunham v. Gates, Hoffm. Ch. (N. Y.) 185. Eaton's Appeal, 66 Pa. 483, reviews and carefully considers this question. See, also, Schwarz v. Wendell, Walk. (Mich.) 267; Cooper v. Tappan, 9 Wis. 361; Pusey v. Wright, 31 Pa. 387; Dunham v. Jackson, 6 Wend. (N. Y.) 22; Kirkpatrick v. Love, Amb. 589; Blount v. Burrow, 4 Brown Ch. 75; Ridgeway v. Darwin, 7 Ves. 404. "The rule in relation to this subject is clearly stated in a case before Lord Chancellor Cowper, in 1707, reported in Gilbert's Law of Evidence (page 45), which was a bill by creditors against an executor for an account of the personal estate of his testator. The executor set forth in his answer that the testator left £1,100 in his hands, and that afterwards, on a settlement with the testator, he gave his bond for £1,000, and the other £100 was given him by the testator for his care and trouble. There was no other evidence in the case of the £1,100 having been deposited with the executor. The answer was put in issue, and it was urged that the answer, though put in issue, should be allowed, since there is the same rule of evidence in equity as at law, and therefore, if a man is so honest as to charge himself, no testimony appearing to charge him, he ought to find credit when he swore in his own discharge. But it was answered and resolved by the court that, when an answer was put in issue, what was confessed and admitted need not be proved; but it behooved the defendant to make out by proofs what was insisted on by way of avoidance. But this was held under this disunction: when the defendant admitted a fact, and insisted on a distinct fact by way of avoidance, then he ought to prove the matter of

$ 646. Matters of affirmative defense.

The rule that a sworn answer must be received as true does not extend to matter asserted by way of defense. New matter

his defense; but if it had been one fact, as if the defendant had said the testator had given him £100, it ought to have been allowed, unless disproved, because nothing of the fact charged is admitted." Parkes v. Gorton, 3 R. I. 27. "If a plaintiff state an act, transaction, or contract as the foundation of his equity the defendant has a right to state the whole of such act, transaction, or contract as in truth it was. Otherwise, a plaintiff, by giving only part of a contract, if the defendant must admit that part, and cannot go on to describe truly all the parts of it, the grossest injustice might be done. But another subsequent, independent, and distinct fact, not stated in the pill, is not responsive, and therefore not within the rule. A few of the many decisions may be referred to in support of these views. One of the earliest is Kirkpatrick v. Love, Amb. 589. There was a decree for a general account, both sides to be examined on interrogatories. Plaintiff admitted the receipt of a parcel of satins, and in the same sentence swore that he had paid for them,-in other words, that it was a cash transaction. It was held that the master was right in refusing to charge the plaintiff with the satins. The court put it upon the ground that the charge and discharge was [were] in the same sentence; otherwise, it had been if the discharge or avoidance had been in a distinct sentence. In Blount v. Burrow, 4 Brown, Ch. 75, Lord Hard wicke said: 'If a man admits by his answer that he received several sums at particular times, and in the same answer swears he paid away those sums at other times in discharge, he must prove his discharge; otherwise it would be to allow a man to swear for himself, and to be his own witness.' Lord Chancellor Eldon, in Ridgeway v. Darwin, 7 Ves. 404, said that, ‘if a man admitted he had received certain sums, which sums he had paid, the discharge following immediately in the same sentence, that would do.' And afterwards, more distinctly in Thompson v. Lambe, 7 Ves. 588: 'A person charged by his answer cannot by his answer discharge himself; nor even by his examination, unless it is in this way: if the answer or examination states that upon a particular day he received a sum of money and paid it over, that may discharge him; but if he says that upon a particular day he received a sum of money, and upon a subsequent day he paid it over, that cannot be used in his discharge, for it is a different transaction.' These cases certainly cannot mean that, if the defendant includes the fact of payment in the same sentence with the admission of the receipt, that alone will avail, unless from the inference to be made,that they were both parts of one and the same transaction. Sir William Grant so states it in Robinson v. Scotney, 19 Ves. 582: The in

in an answer is not evidence, within the meaning of the rule."1 Such matters must be proved by the defendant.62 Where an answer admitting the allegations of the bill avers facts not called for by the bill, to avoid the effect of the admitted allegations, such averments cannot be taken as evidence of the truth of the facts averred. 63

§ 647. Discovery called for by bill.

The rule that the answer of the defendant upon any matter stated in the bill, and responsive to it, is evidence in his favor, not only applies where a material allegation of the bill is denied by the answer, but also where a material disclosure is called for by the bill, and made by the answer.

$648. Effect of waiving answer under oath.

64

Statutes or rules are found in most jurisdictions authorizing a waiver of an answer under oath, and providing that, if the complainant waives an answer under oath, the answer cannot avail the defendant as evidence, but is a mere pleading. In the absence of statute or rule of court, a complainant cannot, by waiving in his bill an answer under oath, prevent the defendant from putting in an answer, and using it as evidence.65

stance usually put is that he received a sum of money, and immediately handed it over.'" Eaton's Appeal, 66 Pa. 490. See, also, Beech v. Haynes, 1 Tenn. Ch. 569.

61 3 Greenleaf, Ev. §§ 285, 287; Gresley, Eq. Ev. 13; Clements v. Moore, 6 Wall. (U. S.) 299; Craft v. Russell, 67 Ala. 9; Whiting v. Beebe, 12 Ark. 421; Robinson v. Jefferson, 1 Del. Ch. 244; Lake Shore & M. S. R. Co. v. McMillan, 84 Ill. 208; O'Brien v. Elliot, 15 Me. 125, 32 Am. Dec. 137; Ringgold v. Ringgold, 1 Har. & G. (Md.) 11, 18 Am. Dec. 250; Fey v. Fey, 27 N. J. Eq. 213; Paynes v. Coles, 1 Munf. (Va.) 373; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62.

62 Barr v. Haseldon, 10 Rich. Eq. (S. C.) 53; Tilghman v. Tilghman, Baldw. 464, Fed. Cas. No. 14,045; Lake Shore & M. S. R. Co. v. McMillan, 84 Ill. 208.

63 Dyer v. Williams, 62 Miss. 302.

64 Fant v. Miller, 17 Grat. (Va.) 187; Thornton v. Gordon, 2 Rob. (Va.) 719.

65 3 Greenleaf, Ev. § 286; Jones v. Abraham, 75 Va. 466; Amory v. Lawrence, 3 Cliff. 523, Fed. Cas. No. 336; Vanderzer v. McMillan, 28

Where there is a provision for the waiver of an answer under oath, if a complainant is unwilling that the answer should be evidence against him, he should clearly waive the oath of the defendant in his bill.66 Under such circumstances, where a bill in equity waives an answer under oath, the fact that the answer is sworn to gives it no force as evidence,67 though any admissions it may contain will operate against him.68 Under a staute permitting the complainant to waive answer under oath, it has been held that he must waive an answer under oath to every part of the bill, or to no part of it; and, after the defendant has put in an answer under oath to a bill not waiving such answer, the complainant cannot, by amendment waiving answer under oath, get rid of the consequences of a denial under oath of the matters of the bill. If the complainant calls for an answer under oath, and, after the coming in of a sworn answer, dismisses his bill, and then files another setting up substantially the same grounds of relief as in the former one, but waiving answer under oath, such sworn answer, filed in the prior suit, will remain evidence, and the complainant can have no decree under his second bill, unless the sworn answer is overcome by a preponderance of other proofs.70

In the absence of statute or rule of court providing for a waiver of an answer under oath, the defendant's answer must be under oath, unless the complainant chooses to dispense with it, in which case he moves for an order to that effect, which

Ga. 339; Fant v. Miller, 17 Grat. (Va.) 187; Thornton v. Gordon, 2 Rob. (Va.) 719.

66 Conley v. Nailor, 118 U. S. 127.

67 Bickerdike v. Allen, 157 Ill. 95, 41 N. E. 740, 29 L. R. A. 782; Clay v. Towle, 78 Me. 86, 2 Atl. 852; Winchester v. Baltimore & S. R. Co., 4 Md. 231; Ayer v. Messer, 59 N. H. 279; Sweet v. Parker, 22 N. J. Eq. 453; Treadwell v. Lennig, 50 Fed. 872; Wallwork v. Derby, 40 Ill.

527.

68 Hyer v. Little, 20 N. J. Eq. 443; Blum v. Mitchell, 59 Ala. 535.

69 Burras v. Looker, Paige (N. Y.) 227.

70 Mey v. Gulliman, 105 Ill. 272. But see Burras v. Looker, 4 Paige N. Y.) 227.

is ordinarily granted, if the defendant is under no incapacity."1 If the parties agree, the order is usually granted of course. The filing of a replication to an unsworn answer is evidence of the waiver of the oath by the complainant.72 Where an answer is not sworn to, its effect and value as evidence have given rise to some difference of opinion. Lord Eldon held that such answer authorized the court to look at the circumstances denied or admitted therein as if it had been put in under oath.73 The weight of authority in America would seem to be that an answer not under oath is to be considered merely as a denial of the allegations of the bill, so as to put the complainant to the proof of such allegations.74

$649. Answer as evidence against co-defendants.

75

The answer of one defendant is not evidence against a codefendant, when there is no privity between the two.7 Where the admissions of a defendant would be evidence against his co

713 Greenleaf, Ev. § 286; Cooper, Eq. Pl. 325; Story, Eq. Pl. § 875. See supra, § 308.

123 Greenleaf, Ev. § 286; Fulton Bank v. Beach, 2 Paige (N. Y.) 307. 73 3 Greenleaf, Ev. § 286; Curling v. Townshend, 19 Ves. 628.

74 3 Greenleaf, Ev. § 286; Union Bank of Georgetown v. Geary, 5 Pet. (U. S.) 99; Bartlett v. Gale, 4 Paige (N. Y.) 503; Willis v. Henderson, 5 Ill. 13; Patterson v. Gaines, 6 How. (U. S.) 588; Blum v. Mitchell, 59 Ala. 535; Bickerdike v. Allen, 157 Ill. 95, 41 N. E. 740, 29 L. R. A. 782. Mr. Justice Story, in his work on Equity Pleading (section 875a), said it was by no means clear that such an answer was not evidence in favor of the defendant as to all facts not disproved by the other evidence and circumstances in the case, nor clear that it ought not to prevail, where the other evidence is either defective, obscure, doubtful, or unsatisfactory, and that it might well be suggested whether the complainant had a right to dispense with the oath, and yet to make the answer evidence in his own favor as to all the facts which it admits, and exclude it as to all the facts which it denies.

753 Greenleaf, Ev. § 283; Field v. Holland, 6 Cranch (U. S.) 8; Danner Land & Lumber Co. v. Stonewall Ins. Co., 77 Ala. 184; Clayton v. Thompson, 13 Ga. 206; Felch v. Hooper, 20 Me. 159; Reese v. Reese, 41 Md. 554; McElroy v. Ludlum, 32 N. J. Eq. 828; Judd v. Seaver, 8 Paige (N. Y.) 548; Pettit v. Jennings, 2 Rob. (Va.) 676; Clark's Ex'rs V. Van Riemsdyk, 9 Cranch (U. S.) 153; Adkins v. Paul, 32 Ga. 219; Glenn v. Grover, 3 Md. 212: Salmon v. Smith, 58 Miss. 399.