But a positive answer, responsive to the bill, is not outweighed by the proof of facts which may be reconciled with the truth of the statements or denials in the answer; nor by the proof of the mere admissions of the defendant, contradictory to the answer, unless they appear to have been deliberately and considerately made.2 Very little reliance, it is said, ought to be placed upon loose conversations or admissions of the party, to overbalance his solemn denial, on oath, in his answer.3

§ 290. The effect thus given to the answer is limited to those parts of it which are strictly responsive to the bill; it being only where the plaintiff has directly appealed to the conscience of the defendant, and demanded of him the disclosure of a particular matter of fact, that he is bound to receive the reply for truth, until he can disprove it. If, therefore, the defendant, in addition to his answer to the matter concerning which he is interrogated by the plaintiff, sets up other facts by way of defence, his answer is not evidence for him, in proof of such new matter but it must be proved, aliundè, as an independent allegation. We have already

1 Branch Bank v. Marshall, 4 Ala. 60.

2 Hope v. Evans, 1 Sm. & M. 195; Petty v. Taylor, 5 Dana, 598. It has been held that the testimony of two witnesses to two distinct conversations, is not sufficient. Love v. Braxton, 5 Call, 537.

3 Flagg v. Mann, 2 Sumn. 486, 553, 554, per Story. J.; Hine v. Dodd, 2 Atk. 275.

4 2 Dan. Ch. Pr. 983, 984, and notes by Perkins; 2 Story, Eq. Jur. 1529; 2 Story, Eq. Pl. § 849 a.; Hart v. Ten Eyck, 2 Johns. Ch. 62. In this case, the rule was thus stated and explained by the learned Chancellor Kent:-"It appears to me, that there is a clear distinction, as to proof, between the answer of the defendant and his examination as a witness. At any rate, the question how far the matter set up in the answer can avail the defendant, without proof, is decidedly and rationally settled. The rule is fully explained in a case before Lord Ch. Cowper, in 1707, reported in Gilbert's Law of Evidence, p. 45. It was the case of a bill by creditors against an executor, for an account of the personal estate. The executor stated 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

seen, that the rule of the Common Law on this subject is different from the rule in Equity; it being required in Courts of Law, when the declaration or conversation of a party is to be proved against him, the whole of what was said at the

£1,000, and the other £100 was given him by the testator as a gift 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 defendant having charged himself, and no testimony appearing, he ought to find credit where he swore in his own discharge. But it was resolved by the Court, that when an answer was put in issue what was confessed and admitted by it, need not be proved; but that the defendant must make out, by proof, what was insisted on by way of avoidance. There, was, however, this distinction to be observed, that where the defendant admitted a fact, and insisted on a distinct fact, by way of avoidance, he must prove it, for he may have admitted the fact under an apprehension, that it could be proved, and the admission ought not to profit him, so far as to pass for truth, whatever he says in avoidance. But if the admission and avoidance had consisted of one single fact, as if he had said the testator had given him £100, the whole must be allowed, unless disproved. This case is cited by Peake, (Ev. 36, in notis,) to show a distinction, on this subject, between the rule at law and equity, and that in Chancery one part of an answer may be read against the party without reading the other; and that the plaintiff may select a particular admission, and put the defendant to prove other facts. He preferred, as he said, the rule at law, that if part of an answer is read, it makes the whole answer evidence; and even Lord Hardwicke, in one of the cases I have cited, thought the rule of law was to be preferred, provided the Courts of law would not require equal credit to be given to every part of the answer. On the above doctrine, in the case from Gilbert, I have to remark, in the first place, that it is undoubtedly the long and well-settled rule in Chancery, whatever may be thought of its propriety. Lord H. says, in the case of Talbot v. Rutledge, that if a man admits, by his answer, that he received several sums of money at particular times, and states that 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. But, in the next place, I am satisfied that the rule is perfectly just, and that a contrary doctine would be pernicious, and render it absolutely dangerous to employ the jurisdiction of this Court, inasmuch as it would enable the defendant to defeat the plaintiff's just demands, by the testimony of his own oath, setting up a discharge or matter in avoidance." 2 Johns. Ch. 88-90. See also Wasson v. Gould, 3 Blackf. 18.

1 Ante, Vol. 1, § 201; Supra, § 281.

same time and in relation to the same subject, should be taken together. But this difference in the rules arises from the difference in principle between the two cases. For in Courts of Law, the evidence is introduced collaterally, as evidence, and not as a pleading; and therefore it is reasonable that the whole should be weighed together; and 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. So, when the bill is for discovery only, and the answer is read for that purpose, the rule still is to read the whole. But when, upon the hearing of a bill for relief, passages are read from the answer, which is put in issue by a replication, they are read not as evidence, in the technical sense, but merely as a pleading to show what the defendant has admitted, and which therefore needs not to be proved; and hence the plaintiff is not required to read more than the admissions.1

§ 291. 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 defence or admission, upon which the bill proceeds.2

1 2 Johns. Ch. 90-94; 2 Poth. Obl. by Evans, 137, 138, (Am. ed.); Ormond v. Hutchinson, 13 Ves. 51, arg., approved by Ld. Ch. Erskine, Id. 53; Thompson v. Lambe, 7 Ves. 587; Boardman v. Jackson, 2 Ball & Beat. 382; Beckwith v. Butler, 1 Wash. 224; Bush v. Livingston, 2 Caines, Cas. 66; Green v. Hart, 1 Johns. 580, 590. If a judgment or decree in another cause is properly stated in the bill and admitted in the answer, the record of it is not requisite to be filed as an exhibit, but will be deemed sufficiently proved by the admission in the answer. Lyman v. Little, 15 Verm. 576.

2 Butterworth v. Bailey, 15 Ves. 358, 363. And see Lousada v. Templer, 2 Russ. 561; 1 Story Eq. Jur. § 64 k, 70 – 73.

§ 292. We are next to consider admissions made by express AGREEMENT OF THE PARTIES, in order to dispense with other proof. These ordinarily ought to be in writing, and signed by each party or his solicitor; the signature of the latter being deemed sufficient, as the Court will presume that he was duly authorized for that purpose.1 But it is not indispensably necessary that the agreement be written; in some cases, as for example, the waiver of proof by subscribing witnesses, a parol agreement, either of the party, or of the attor ney, has been held sufficient. It must, however, be a distinct agreement to admit the instrument at the trial, dispensing with the ordinary proof of its execution; for what the attorney said in the course of conversation is not evidence in the cause. The authority of the attorney to act as such will be sufficiently proved, if his name appears of record.

$293. Admissions of this sort, however, are not to be extended by implication, beyond what is expressed in the agreement. Thus, in an action of covenant, where the defendant's attorney signed an admission in these words, "I admit the due execution of the articles of agreement dated the 23d day of February, 1782, mentioned in the declaration in this cause," it was held that this only dispensed with the attendance of the subscribing witness, and did not preclude the defendant from showing a variance between the instrument produced in evidence and that described in the declaration; though, had the language been "as mentioned in the declaration," its effect might have been different.5 So, where it

1 Gainsford v. Grammar, 2 Campb. 9; 2 Dan. Ch. Pr. 988; Gresley on Eq. Evid. 48; Young v. Wright, 1 Campb. 139. In some Courts, the rules require that these agreements should always be in writing, or be reduced to the form of an order by consent. See Suydam v. Dequindre, Walk. Ch. 23. (Michigan); Brooks v. Mead, Id. 389.

2 Laing v. Raine, 2 B. & P. 85; Marshall v. Cliff, 4 Campb. 133.

3 Ibid.; Young v. Wright, supra. Ante, Vol. 1, § 186.

4 Ibid.

5 Goldie v. Shuttleworth, 1 Campb. 70.

was admitted that a certain exhibit was a notice, and that a certain other exhibit was a true copy of the lease referred to in the notice; it was held, that the admission of the notice was not evidence of the lease, and that the admission as to the copy of the lease only substituted the copy for the original, but did not place the copy in a better situation than the original would have been if it were produced but not proved.1

§ 294. Lastly, it is to be observed, that while the Courts will generally encourage the practice of admissions tending to the saving of time and expense, and to promote the ends of justice, they will not sanction any agreement for an admission, by which any of the known principles of law are evaded. Thus, where a husband was willing that his wife should be examined as a witness, in an action against him for malicious prosecution, Lord Hardwicke refused to permit it, because it was against the policy of the law.2 Admissions by infants, and admissions evasive of the stamp-laws, have been disallowed, on the same general principle.

3. DOCUMENTS.

§ 295. In respect to documents, the first point to be considered is their PRODUCTION; which, on motion, is ordered by the Court, either for their safe custody and preservation, pendente lite, or for discovery and use for the purposes of the

1 Mounsey v. Burnham, 1 Hare, 15. And see Fitzgerald v. Flaherty, 1 Moll. 350.

2 2 Dan. Ch. Pr. 988; Barker v. Dixie, Rep. temp. Hardw. 264. And see Owen v. Thomas, 3 My. & K. 357. Such seems to be the sound rule of law, though it has in one or two instances been broken in upon. See ante, Vol. 1, § 340.

3 See supra, § 279, 280; Wilkinson v. Beal, 4 Mad. 408; Townsend v. Ives, 1 Wils. 216; Holden v. Hearn, Beav. 445; Morrison v. Arnold, 19 Ves. 671.

4 Owen v. Thomas, 3 My. & K. 353-357; 2 Dan. Ch. Pr. 989.