§ 279. There are also some exceptions to the rule in regard to the answer of an infant. For after he comes of age he may be permitted to file a new answer, upon his affidavit that he now can make a better defence than before; but he is bound to do this, as he is in respect to the confirmation or avoidance of other acts of his infancy, within a reasonable time after his coming of age, and without laches; if, therefore, he unreasonably delays to apply for leave to make a better defence, he will be taken to have confirmed his former answer, and it may then be read against him.1 And if the infant's father, being an heir at law, and of age, has by his answer in the original suit admitted the due execution of the will of his ancestor, but died before the cause was brought to an hearing, the answer may be read against the infant, as an admission of the will and sufficient to establish it.2

§ 280. But though, in general, the answer of an infant cannot be read against him, except as above stated, yet the rule is different in regard to idiots and persons of permanently

clear, as a general rule of law, that no party or witness can be compelled to discover or to state any matter which may expose him to a criminal charge or penalty. Ante, Vol. 1, § 193, n. ; Id. § 451; Story, Eq. Pl. § 575-578,591598; Wigram on Discovery, Pl. 130-133; Litchfield E. of, v. Bond, 6 Beav. 88; Adams v. Porter, 1 Cush. 170; 1 Dan. Ch. Pr. 626, 627, and notes by Perkins; Livingston v. Thompkins, 4 Johns. Ch. 432; Leggett v. Postley, 2 Paige, 599. And it is now well settled, that if a witness, claiming the protection of the Court, is obliged to answer in a matter tending to criminate himself; what he says must be considered to have been obtained by compulsion, and cannot afterwards be given in evidence against him. Regina v. Garbett, 2 C. & K. 474, 495; Ante, Vol. 1, § 451. The same principle, it is conceived, will apply to matters which the defendant has been compelled to disclose in his answer in Chancery. But where the defendant voluntarily answers, without obtaining the protection of the Court by demurring or otherwise, the answer may be read in evidence against him, in a criminal prosecution. Regina v. Goldshede, 1 C. & K. 657. And see ante, Vol. 1, § 193, 225, 226.

1 Cecil v. Salisbury, 2 Vern. 224; Bennett v. Lee, 1 Dick. 89; 2 Atk. 487, 529; Stephenson v. Stephenson, 6 Paige, 353; Mason v. Debow, 2 Hayw. 178.

2 Lock v. Foote, 4 Sim. 132.

weak intellects, and those who by reason of age or infirmity are reduced to a second infancy; their answer, which is made by guardian, being admitted to be read against them, as the answer of one of full age, made in person. The reason of the difference is said to be this, that as the infant improves in reason and judgment, he is to have a day to show cause, after he comes of age; but the case of the others being hopeless, and becoming worse and worse, they can have no day.1

§ 281. In regard to the reading of the answer in support of the plaintiff's case, the rule in Equity is somewhat different from the rule at Law. For though, as we have heretofore seen,2 when the answer of a defendant in Chancery is read against him, in an action at law, the defendant is entitled to have the whole read; yet in Courts of Equity the rule is, that "where a plaintiff chooses to read a passage from a 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 thus 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."3 Thus, where the passage read commenced with the words "before such demand was made," the plaintiff was ordered to read the passage immediately preceding, in which that demand was spoken of. The defendant, also, may read any other passage in his answer,

1 1 Dan. Ch. Pr. 224, 225; Leving v. Canely, Prec. Ch. 229. And see 2 Johns. Ch. 235 - 237.

2 Ante, Vol. 1, § 201, 202.

3 Bartlett v. Gillard, 3 Russ. 157, per Ld. Eldon. And see Nurse v. Bunn,

5 Sim. 225; Colcott v. Maher, 2 Moll. 316; Ormond v. Hutchinson, 13 Ves.

53.

4 Ibid.

connected in meaning with that which the plaintiff has read.1 The want of grammatical connection will not prevent another part from being read, if it is connected in meaning and is explanatory of the other; and, on the other hand, a merely grammatical connection, as, for example, by the particles but or and, will not entitle another part to be read, if it have no such explanatory relation.2 It may here be added, that where the plaintiff, in reading a passage from a defendant's answer, has been obliged to read an allegation which makes against his case, he will be permitted to read other evidence, disproving such allegation.3

§ 282. 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 of it, will not be regarded as an admission of the fact. But if he answers 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 ancestor; it being the course of the Court to require either a direct admission, or proof in the usual manner.1

§ 283. We have already seen, that generally, the answer of one defendant cannot be read against another, there being no issue between them, and, therefore, no opportunity for cross

Rude v. Whitchurch, 3 Sim. 562; Skerrett v. Lynch, 2 Moll. 320.

2 Davis v. Spurling, 1 Russ. & My. 64; Tam. 199, S. C.

3 2 Dan. Ch. Pr. 979; Price v. Lytton, 3 Russ. 206.

4 2 Dan. Ch. Pr. 980; Potter v. Potter, 1 Vez. 274. Whether this exception applies to an administrator's belief that a debt is due from the intestate, quære; and see Hill v. Binney, 6 Ves. 738.

examination; but that this rule does not apply to cases where the defendant claims through him whose answer is proposed to be read; nor to cases where they are jointly interested in the transaction in question, as partners, or are otherwise identified in interest.1 So, where the defendant, in his own answer, refers to that of his co-defendant for further information.2 And though it is laid down, as a general rule, that the answer of one defendant cannot be read by another defendant as evidence in his own favor; 3 yet the universality of this rule has been controverted; and it has been held, that where the answer in question is unfavorable to the plaintiff, and is responsive to the bill, by furnishing a disclosure of the facts required, it may be read as evidence in favor of a co-defendant; especially where the latter defends under the title of the former.4

1 Ante, Vol. 1, § 178, 180, 182; 2 Dan. Ch. Pr. 981, 982, and cases in notes by Perkins. And see Crosse v. Bedingfield, 12 Sim. 35.

2 Ibid.; Chase v. Manhardt, 1 Bland, 336; Anon. 1 P. Wms. 301.

3 2 Dan. Ch. Pr. 981, (Perkins's ed.) and notes.

4 Mills v. Gore, 20 Pick. 28. The decision in this case proceeded on the general ground, though the latter circumstance was also mentioned, as an independent reason. The language of the Court was as follows:- "An answer of one defendant is not evidence against a co-defendant, for the plaintiff may so frame his bill and interrogatories, as to elicit evidence from one defendant to charge another, and to exclude such matters as might discharge him. To admit the answer of the one to be evidence against the other, under such circumstances, and when cross-interrogatories could not be admitted, would give to the plaintiff an undue advantage, against the manifest principles of impartial justice. But where the answer is unfavorable to the plaintiff, and consequently operates favorably for a co-defendant, this reason is not applicable. Where the plaintiffs call upon a defendant for a discovery, requiring him to answer under oath fully to all the matters charged in the bill, they cannot be allowed to say that his answer is not testimony. And so was the decision in Field v. Holland, 6 Cranch, 8. In that case it was held that the answer of Cox, one of the defendants, was not evidence against the other defendant, Holland, but that being responsive to the bill it was evidence against the plaintiff. And besides, in the present case, the respondent Quincy has a right to defend himself under the title of Gore. He is but a depositary of the papers, and became such at the request of both parties. He has no interest in the question, but is bound to deliver the papers to the party having the title. The question of title is between

§ 284. The answer of the defendant is not only evidence against him, but it may also, to a certain extent, and if sworn to, be read as evidence in his favor, sufficient, if not outweighed by opposing proof, to establish the facts it contains. For it is to be observed, that the bill, though in part a mere pleading, is not wholly so; but where the older forms are still used, it is the examination of a witness by interrogatories. And in those States in which the interrogating part of the bill is now dispensed with, and the defendant is by the rules required to answer each material allegation in the bill as particularly as if specially interrogated thereto, the bill, it is conceived, partakes in all cases of the character both of a pleading and also of an examination of the defendant as a witness. The answer, too, so far as it sets up a new and distinct matter of defence, to defeat the equity of the plaintiff, is a mere pleading, in the nature of a confession and avoidance at law. When it only denies the facts on which the plaintiff's equity is founded, it is not only a pleading, but it is a pleading coupled with evidence. In all other respects, and so far as it is responsive to the bill, it is evidence; and the plaintiff, having thought fit to make the defendant a witness, is bound by what he discloses, unless it is satisfacto

the plaintiffs and the defendant Gore, and Gore's answer, being evidence for him in support of his title, is consequentially evidence for the other defendant. So, that in whatever point of view the objection may be considered, we think it quite clear that the answer in question, so far as it is responsive to the bill, is evidence to be weighed and considered; and that it is to be taken to be true, unless it is contradicted by more than one witness, or by one witness supported by corroborating circumstances, according to the general rule of equity. The answer in all respects, in relation to the question as to the delivery of the deed and note, is directly responsive to the allegations in the bill, and it expressly denies that the deed and note were ever delivered to the plaintiff Mills, as charged in the bill." 20 Pick. 34, 35.

1 Clason v. Morris, 10 Johns. 524, 542; Union Bank v. Geary, 5 Pet. 99; Daniel v. Mitchell, 1 Story, R. 172, 188; Adams, Doctr. of Eq. 21, 363. In Indiana, it is enacted, that " Pleadings, sworn to by either party, in any case, shall not on the trial be deemed proof of the facts alleged therein, nor require other or greater proof on the part of the adverse party than those not sworn to." Rev. Stat. 1852, Vol. 2, Part 2, ch. 1, § 785, p. 205.