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tion is filed, the cause is set down for a hearing on the bill and answer, by the plaintiff, or by consent, the answer is still taken as true, notwithstanding the replication.1 And where the defendant states only that he believes, and hopes to be able to prove, the facts alleged in the answer, the same rule prevails, and the facts so stated are taken for truth. If, where the cause is heard upon bill and answer, it appears that the plaintiff is entitled to a decree, he must take it upon the qualifications stated in the answer.

§ 289. Subject to the preceding qualifications and exceptions, the known rule in Equity, as before intimated, is "that an answer, which is responsive to the allegations and charges made in the bill, and contains clear and positive denials thereof, must prevail; unless it is overcome by the testimony of two witnesses to the substantial facts, or at least, by one witness, and other attendant circumstances which supply the want of another witness, and thus destroy the statements of the answer, or demonstrate its incredibility or insufficiency as evidence." 5 From the manner in which this rule is stated,

dicted or disproved, as other testimony, according to the practice of Courts of Chancery." Rev. Stat. 1837, ch. 23, § 49. So is the law in Missouri, Rev. Stat. 1845, ch. 137, § 30. And in Illinois, Rev. St. 1845, ch. 21, § 33. In Ohio, it is enacted that, at a hearing on bill and answer, the answer may be contradicted by matter of record referred to in the answer, but not otherwise. Rev. Stat. 1841, ch. 87, § 31. So also is the statute law in New Jer

sey, Rev. Stat. 1846, tit. 33, ch. 1, § 38.

And in Missouri, Rev. Stat. 1845,

ch. 137, § 29. And in Illinois, Rev. Stat. 1845, ch. 21, § 32.

1 Moore v. Hylton, 1 Dev. Ch. 429; Carman v. Watson, 1 How. Miss. R.

333; Recce v. Darley, 4 Scam. 159.

2 Brinckerhoff v. Brown, 7 Johns. Ch. 217, 223.

3 Doolittle v. Gookin, 10 Verm. 265.

4 Supra, § 277. And see ante, Vol. 1, § 260.

5 Daniels v. Mitchell, 1 Story, R. 172, 188, per Story, J.; Lenox v. Prout, 3 Wheat. 520. And see 2 Dan. Ch. Pr. 983, and cases in Mr. Perkins's note; 2 Story, Eq. Jur. § 1528. In Iowa, every pleading required to be made under oath, if sworn to by the party himself, is considered as evidence in the cause, of equal weight with that of a disinterested witness. Rev. Code, 1851, § 1745; and every affirmative allegation duly pleaded in the petition, if not responded to in the answer, is taken as true. Id. § 1742. But an

both here and elsewhere, it might at first view appear as though the testimony of a witness were indispensable, and

answer though responsive to the bill, and denying its charges, and not outweighed by two opposing witnesses, or by one witness and other equivalent testimony, is not conclusive upon a Jury. Hunter v. Wallace, 1 Overton, 239. 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, Pt. 2, ch. 1, § 75. In Mississippi, the rule, requiring more than one witness to overthrow an answer in Chancery, is abolished in all cases where the bill is sworn to by the complainant; and it is enacted, that the answer shall in no case receive greater weight and credit, upon the hearing, than, in view of the interest of the party making it, and the circumstances of the case, it may be fairly entitled to. Stat. Feb. 15, 1838, § 6; Ald. & Van Hoes. Dig. p. 847. In Arkansas, the answer to a bill of discovery is not conclusive; but on filing a replication, the plaintiff may contradict or disprove it, as in other cases, according to the course of practice in Chancery. Rev. Stat. 1837, ch. 23, § 49. In Michigan, in bills other than for discovery, the plaintiff may waive the defendant's oath to the answer; in which case the answer may be made without oath, and shall have no other or greater force, as evidence, than the bill. Rev. Stat. 1846, ch. 90, 31. In Alabama, the law is the same. Code of Alabama, (1852,) 2877. It is also the same in Illinois. Rev. Stat. 1845, ch. 21, § 21. In Carpenter v. Prov. Wash. Ins. Co. 4 How. S. C. R. 185, the rule stated in the text was reviewed and commented on, by Woodbury, J. "Where an answer," he observed, "is responsive to a bill, and like this, denies a fact unequivocally and under oath, it must in most cases be proved not only by the testimony of one witness, so as to neutralize that denial and oath, but by some additional evidence, in order to turn the scales for the plaintiff. Daniel v. Mitchell, 1 Story's Rep. 188; Higbie v. Hopkins, 1 Wash. C. C. R. 230; The Union Bank of Georgetown v. Geary, 5 Peters, 99. The additional evidence must be a second witness, or very strong circumstances. 1 Wash. C. C. R. 230; Hughes v. Blake, 1 Mason, C. C. R. 514; 3 Gill & Johns. 425; 1 Paige, 239; 3 Wend. 532; 2 Johns. Ch. R. 92. Clark's Ex'rs v. Van Riemsdyk, 9 Cranch, 153, says, 'with pregnant circumstances.' (Neale v. Hagthorp, 3 Bland's Ch. 567; 2 Gill & Johns. 208.) But a part of the cases on this subject introduce some qualifications or limitations to the general rule, which are urged as diminishing the quantity of evidence necessary here. Thus, in 9 Cranch, 160, the grounds of the rule are explained; and it is thought proper there, that something should be detracted from the weight given to an answer, if from the nature of things the respondent could not know the truth of the matter sworn to. So, if the answer do not deny the allegation, but only express ignorance of the fact, it

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that documentary evidence, however weighty, would not alone suffice to counterpoise the answer. But it is not so. The rule, when stated as above, applies particularly to the case of an answer, opposed only by the testimony of one witness; in which case the Court will neither make a decree, nor send it to a trial at law. But if there is sufficient evidence in the cause to outweigh the force of the answer, the plaintiff may have a decree in his favor. This sufficient evidence may consist of one witness, with additional and corroborative circumstances; and these circumstances may sometimes be found in the answer itself;2 or it may consist of

has been adjudged that one positive witness to it may suffice. 1 J. J. Marshall, 178. So, if the answer be evasive or equivocal. 4 J. J. Marshall, 213; 1 Dana, 174; 4 Bibb, 358. Or if it do not in some way deny what is alleged. Knickerbacker v. Harris, 1 Paige, 212. But if the answer, as here, explicitly denies the material allegation, and the respondent, though not personally conusant to all the particulars, swears to his disbelief in the allegations, and assigns reasons for it, the complainant has in several instances been required to sustain his allegation by more than the testimony of one witness. (3 Mason's C. C. R. 294.) In Coale v. Chase, 1 Bland, 136, such an answer and oath by an administrator was held to be sufficient to dissolve an injunction for matters alleged against his testator. So is it sufficient for that purpose if a corporation deny the allegation under seal, though without oath, (Haight v. Morris Aqueduct, 4 Wash. C. C. R. 601); and an administrator denying it under oath, founded on his disbelief, from information com- . municated to him, will throw the burden of proof on the plaintiff beyond the testimony of one witness, though not so much beyond as if he swore to matters within his personal knowledge. 3 Bland's Ch. 567, note; 1 Gill & Johns. 270; Pennington v. Gittings, 2 Gill & Johns. 208. But, what seems go further than is necessary for this case, it has been adjudged in Salmon v. Clagett, 3 Bland, 141, 165, that the answer of a corporation, if called for by a bill, and it is responsive to the call, though made by a corporation aggregate under its seal, without oath,' is competent evidence, and cannot be overturned by the testimony of one witness alone.' We do not go to this extent, but see no reason why such an answer, by a corporation, under its seal, and sworn to by the proper officer, with some means of knowledge on the subject, should not generally impose an obligation on the complainant to prove the fact by more than one witness. (5 Peters, 111; 4 Wash. C. C. R. 601.") See 4 How. S. C. R. 217–219.

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Pember v. Mathers, 1 Bro. Ch. R. 52.

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2 Pierson v. Catlin, 3 Verm. 272; Maury v. Lewis, 10 Yerg. 115. And see Freeman v. Fairlie, 3 Mer. 42. For cases, illustrative of the nature and

circumstances alone, which, in the absence of a positive witness, may be sufficient to outweigh the answer even of a defendant who answers on his own knowledge.1 Thus, on

amount of the corroborative testimony required, in addition to one witness, to outweigh the answer, see Only v. Walker, 3 Atk. 407; Morphett v. Jones, 1 Swanst. 172; Biddulph v. St. John, 2 Sch. & Lefr. 532; Lansday v. Lynch, Id. 1; Pilling v. Armitage, 12 Ves. 78.

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1 Long v. White, 5 J. J. Marsh. 228; Gould v. Williamson, 8 Shepl. 273; Clark v. Van Riemsdyk, 9 Cranch, 153. In this case, the doctrine on this subject was expounded by Marshall, C. J., in the following terms : — " general rule, that either two witnesses or one witness, with probable circumstances, will be required to outweigh an answer asserting a fact responsively to a bill, is admitted. The reason upon which the rule stands, is this. The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence. If it is testimony, it is equal to the testimony of any other witness; and as the plaintiff cannot prevail if the balance of proof be not in his favor, he must have circumstances in addition to his single witness, in order to turn the balance. But certainly there may be evidence arising from circumstances stronger than the testimony of any single witness. The weight of an answer, must also, from the nature of evidence, depend, in some degree, on the fact stated. If a defendant asserts a fact which is not and cannot be within his own knowledge, the nature of his testimony cannot be changed by the positiveness of his assertion. The strength of his belief may have betrayed him into a mode of expression of which he was not fully apprised. When he intended to utter only a strong conviction of the existence of a particular fact, or what he deemed an infallible deduction from facts which were known to him, he may assert that belief or that deduction in terms which convey the idea of his knowing the fact itself. Thus, when the executors say that John Innes Clark never gave Benjamin Monro authority to take up money or to draw bills; when they assert that Riemsdyk, who was in Batavia, did not take this bill on the credit of the owners of the Patterson, but on the sole credit of Benjamin Monro, they assert facts which cannot be within their own knowledge. In the first instance they speak from belief; in the last they swear to a deduction which they make from the admitted fact that Monro could show no written authority. These traits in the character of testimony must be perceived by the Court, and must be allowed their due weight, whether the evidence be given in the form of an answer or a deposition. The respondents could found their assertions only on belief; they ought so to have expressed themselves; and their having, perhaps incautiously, used terms indicating a knowledge of what, in the nature of things, they could not know, cannot give to their answer more effect than it would have been entitled to, had they been more

the one hand, it has been held, that if the answer be positive, denying the charge in the bill, it ought not to be overthrown by evidence less positive, though it proceed from the mouth. of two witnesses; and that if the answer be improbable, yet if it is not clearly false, it will be conclusive in favor of the defendant, in the absence of any opposing proof. On the other hand, it has been held, that the force of the answer to a bill of discovery may be impeached by evidence, showing directly that the defendant is not to be believed. So, if the fact is denied upon belief only; unless the grounds of belief are also disclosed, and are deemed sufficient; or, if the fact is denied equivocally, indistinctly, or evasively, in the answer; 5 or, if the denial is mixed up with a recital of circumstances inconsistent with the truth of the denial; or, if the answer is made by a corporation, under its seal, and without oath ;7 the testimony of one witness may be sufficient against it.

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circumspect in their language." 9 Cranch, 160, 161. See, also, Watts v. Hyde, 12 Jur. 661.

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The rule requiring the testimony of two witnesses, or its full equivalent, was borrowed from the rule of the Roman Civil Law, — Responsio unius non omninò audiatur. But the strictness with which the rules of that law were formerly observed in Courts of Equity has very much abated in modern times, and the rule in question is now placed on the principle above stated by Marshall, C. J. It hence appears that these Courts no longer recognize the binding force of the Civil Law, even in proceedings which, in general, are according to the course of that law; but govern themselves by the principles and rules of the Common Law, in all cases to which these principles and rules can apply; agreeably to the maxim- æquitas sequitur legem. 1 Auditor v. Johnson, 1 Hen. & Munf. 536.

2 Jackson v. Hart, 11 Wend. 343.

3 Miller v. Talleson, 1 Harp. Ch. 145. And see Dunham v. Yates, 1 Hoffm. Ch. R. 185.

4 Hughes v. Garner, 2 Y. & C. 328; Copeland v. Crane, 9 Pick. 73, 78; Hunt v. Rousmanier, 3 Mason, 294.

5 Phillips v. Richardson, 4 J. J. Marsh. 212. And see Brown v. Brown, 10 Yerg. 84; Farnam v. Brooks, 9 Pick. 212; Martin v. Greene, 10 Miss. 652.

6 Barraque v. Siter, 4 Eng. 545.

7 Van Wyck v. Norvell, 2 Humphr. 192; Lovett v. Steam Saw-mill Co. 6 Paige, 54; sed quære, and see 4 How. S. C. R. 218, 219, semb. contra.

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