which case the bill may be amended by adding such supplemental matter.10 When matter has been discovered after the answer has been filed, which is then called new matter, it cannot be introduced by the amendment, the only way to introduce it is by filing a supplemental bill." It is a rule that before issue joined the only way to introduce matter which occurred before the filing of the bill is by way of amendment. It cannot be introduced by way of supplemental bill. The reason assigned for this is, that the original cause is still in fieri. After issue joined it is no longer so, and such matter may be introduced by a supplemental bill, which may be filed by leave of court. Such supplemental bill, however, cannot be brought without the leave of the court, because the plaintiff cannot introduce new matter into the same cause after the time for amendment has passed, so as to make a part of it, without permission of the court.12 After a plea set down for argument the plaintiff may amend his bill; and though taking exceptions to an answer accompanying a plea is an admission of the plea, yet amending the bill after the plea is not to have the effect of allowing the plea. So at any time before a demurrer is allowed the plaintiff may amend the bill.13 If, upon hearing the cause, the plaintiff appears entitled to relief, but the case made out by the bill is insufficient to ground a complete decree, the court will not allow an amendment, but will sometimes give the plaintiff leave to file a supplemental bill, to bring before the court such matter as is necessary, in addition to the case made out by the original bill. If the addition of parties only is wanted, an order is usually made for the cause to stand over, with liberty for the plaintiff to amend his bill by adding the proper parties.14 4392. Considering infants under its protection, the court will not permit an infant plaintiff to be injured by the manner in which his bill has been framed. Therefore, where a bill on behalf of an infant submitted to pay off a mortgage, and, upon hearing the cause, the court was of opinion that the infant was not bound to pay the mortgage, it was ordered that the bill should be amended by striking out the submission. And when, by the bill, a matter has not been properly put in issue, to the prejudice of the infant, the court has generally ordered the bill to be amended.15 4393. A defendant may also amend his pleadings, but this is allowed with much more caution than in the case of a plaintiff. These amendments may be allowed with regard to demurrers; to pleas; to answers. 4394. A demurrer cannot, as a plea, be good in part and bad in part, with reference to its extent, or the quantity of the bill covered by it; and if it is too general, it must be overruled; but, in such case, the court will exercise a discretion, when a fair case is made, to give the defendant leave to amend, and to narrow it upon proper terms, which is a guard upon the practice.16 4395. Although the court will permit pleas to be amended when there has been an evident mistake or slip, and the material ground of defence appears sufficient, yet the court always expects to be told precisely what the amendment is to be, and how the slip happened, before the allowance of the amendments 10 Cooper, Eq. Pl. 332; Mitford, Eq. Pl. Jeremy, ed. 324; Van Maren v. Johnson, 15 Cal. 308; Brookover v. Hurst, 1 Metc. Ky. 665. 11 Mitford, Eq. Pl. Jeremy, ed. 326; Stafford v. Howlett, 1 Paige, Ch. N. Y. 200; Hammond v. Place, Harr. Ch. Mich. 438. 12 Story, Eq. Pl. 890. 13 Gorham v. Wing, 10 Mich. 486. 14 Cooper, Eq. Pl. 334; Mitford, Eq. Pl. Jeremy, ed. 326, 327; Fulton v. Smith, 27 Ga. 413. 15 Mitford, Eq. Pl. Jeremy, ed. 327; Cooper, Eq. Pl. 335; Story, Eq. Pl. 892. 16 Cooper, Eq. Pl. 336. takes place. But though leave will be given to amend pleas, yet the defendant is usually tied down to a very short time in which to amend. In some cases where the amendment of the plea cannot be made in consequence of its construction, the court have granted the defendant leave to withdraw his plea, and plead de novo in a fortnight." When a plea is clearly good in substance, but is considered as objectionable in point of form, as not concluding in bar or otherwise, and not stating some other necessary things, leave will be given to amend.18 4396. When the defendant has given the sanction of an oath to his defence, the court cannot allow amendments, for obvious reasons, except in small matters not of any substantial importance, unless upon evidence to the court of surprise. The most common case of amending an answer is where, through inadvertency, a defendant has mistaken a fact or a date, then the defendant will be permitted to amend, to prevent his being prosecuted for perjury." In general, however, this indulgence is confined to mere mistake or surprise; 20 and the amendment will be allowed or refused in the sound discretion of the court.21 22 An amendment of the bill entitles the plaintiff to amend the plea or answer. 4397. A distinction has also been made between the admission of a fact and the admission of a consequence in law or in equity. When, therefore, a defendant, after putting in an answer, discovered a ground or defence to a bill of which he was not before informed, a purchase by the person under whom he claimed, without notice of the plaintiff's title, which could only be used by way of defence, and could not be the ground of a bill of review, the court allowed the answer to be taken off the file, and the new matter to be added, and the 4398. When a fact which may be of advantage to a defendant has happened subsequently to his answer, it cannot with propriety be put in issue by amending his answer. If this appears to the court on the hearing, the proper way seems to be to order the cause to stand over till a new bill, in which the fact can be put in issue, be brought to a hearing with the original suit; and a bill for this purpose seems to be in the nature of a plea puis darrein continuance at the common law.24 In some cases the defendant is allowed to take advantage of such a state of facts by filing a supplemental answer.25 17 Nobkissen v. Hastings, 2 Ves. Ch. 85. 18 Cooper, Eq. Pl. 236; Newman v. Wallis, 2 Brown, Ch. 143, 147; Brooks v. Miller, 1 Grant, Cas. Penn. 202. 19 Cooper, Eq. Pl. 337; Mitford, Eq. Pl. Jeremy, ed. 328; Story, Eq. Pl. 896. 20 Mitford, Eq. Pl. Jeremy, ed. 328. 21 Wiggin v. Dorr, 3 Sumn. C. C. 410; Calvert v. Carter, 18 Md. 73. 22 Bassett v. Salisbury Co., 43 N. H. 249; Logan v. Tibbott, 4 Greene, Iowa, 389. 23 Patterson v. Slaughter, Ambl. Ch. 292; Mitford, Eq. Pl. Jeremy, ed. 328, 329; Cooper, Eq. Pl. 337; Story, Eq. Pl. 897. See Denton v. Logan, 3 Metc. Ky. 434. 24 Mitford, Eq. Pl. Jeremy, ed. 329. 25 Matteson v. Curtis, 14 Wisc. 436. 671 CHAPTER XV. THE EVIDENCE IN EQUITY. 4399. The proceeding after the pleadings. 4400. The evidence. 4406-4419. The matters to be proved. 4407-4414. Admissions. 4408-4413. Admissions upon record. 4409. Actual admissions upon record. 4412. Constructive admissions upon record. 4414. Admissions by agreement between the parties. 4415. The burden of proof. 4416. The proof must be confined to the matter in issue. 4421-4437. Oral testimony. 4422. The competency of witnesses. 4423. The examination of witnesses by the examiner. 4426-4434. Demurrers to interrogatories. 4428. Demurrers on the ground of incompetency. 4430-4434. The privilege of the witness. 4431. Because the answer may subject the witness to a criminal charge. 4433. Because the answer tends to degrade the witness. 4434. Because it is against public policy. 4435. Proceedings on the return of the evidence. 4399. Having explained the various proceedings in a chancery suit, the selection of parties, the several kinds of bills, and the defence which may be set up to the charges of the plaintiff, the whole course of pleadings, and how a cause is brought to an issue, the next object of examination will be the proceedings which follow. These will be considered in two chapters, relating to the evidence; the hearing; and the decrees. 4400. While many of the rules relating to the admissibility, competency, and effect of evidence must be the same in equity as at law, there are yet differences arising from the restricted jurisdiction in equity, the character of the tribunal which is to give the decision, the nature of the relief afforded rendering special inquiries necessary, and other causes which require a special examination here. The subject of evidence at law having been previously considered, it will only be necessary now to attend to the points of difference. 4401. One important difference will be found to arise from the limited jurisdiction in equity as compared with the whole range of jurisdiction at law. In each branch the evidence of course must be directed toward the point in issue. This in equity, in a large majority of instances, involves some matter of fraud, accident, or mistake. At law, however, the issue may relate to almost any matter connected with human affairs; crimes, damages caused by tortious acts or breach of contract, and an infinity of various matters may be involved. Of course, then, those rules of evidence peculiarly applicable to those excluded classes are of no service in matters in equity. 4402. Evidence in equity is somewhat circumscribed by the nature of the tribunal itself and the distinct character of its proceedings. Matters are frequently brought into a trial at law on which there can be no question in the mind of the judge and the bar as to the proper verdict, yet a great latitude is allowed for the production of evidence which may influence the feelings and prejudices of an inexperienced and irresponsible jury. On the contrary, an equity suit is to be deliberately decided by calm reason alone; it usually contains points of real legal difficulty, and depends upon the close application of principles to the main facts of the case. Consequently, much discursive matter is pruned away from the evidence in equity, and suits are not unfrequently decided upon mutual admissions alone.1 4403. There is a marked difference between the laxity allowed in certain cases in equity and the strictness insisted upon at law. At law, for instance, a mass of cases and rules may be found under the head of variance; courts of equity, on the contrary, do not readily admit the importance of a mistake or inaccuracy, and will without difficulty allow a flaw to be remedied by amendment.2 4404. Sometimes courts of equity allow a minuteness and an extension when an investigation has been fairly entered upon in equity, which leads into innumerable ramifications. For example, a dispute concerning a trust requires due proof of deeds and wills, and thence may lead to questions of forgery and conspiracy, and trench upon the criminal jurisdiction. In cases of fraud and trusts a court of equity does not confine itself within strict rules, as they do at law, but for the sake of justice and equity will enter into the merits of the case in order to come at fraud, or to know the true and real intention of a trust or use declared under deeds.3 4405. The whole system of evidence in the courts of equity is an engrafting of the rules established amongst English lawyers upon the forms used by the civilians, for the maxim æquitas sequitur legem applies with full force to this branch of the law.* 4406. We shall next consider in order the three matters of admissions, the burden of proof, or onus probandi, and the restriction of the evidence to the matters in issue. 4407. It is a general rule that whatever is necessary to support the case of the plaintiff so as to entitle him to a decree against the defendant, or in the case of the defendant to support his own case, as made by his answer against that of the plaintiff, must be proved, unless it is admitted by the other party. This leads us to consider what admissions will render the production of proof unnecessary. Admissions are the declarations which a party, by himself or those who act under his authority, make of the existence of certain facts. The admission is simply the testimony which the party admitting bears to the truth of an obligation or of a fact against himself. Admissions are either upon the record or by agreement between the parties. 4408. Admissions upon record are actual, or such as appear in the bill or the answer, or constructive. 4409. Áctual admissions are said to be plenary or partial. They are plenary by force of the terms used, not only when the answer runs in this form, "the defendant admits it to be true," but also when he simply asserts, and, generally 1 Gresley, Ev. 2. * Man v. Ward, 2 Atk. Ch. 229. VOL. II.-4 K 673 2 Gresley, Ev. 2. 4 Reynish v. Martin, 3 Atk. Ch. 333. speaking, when he says "he has been informed, and believes to be true,” without adding a qualification, such as, "that he does not know of it of his own knowledge to be so, and, therefore, does not admit the same.' Partial admissions are those which are delivered in terms of uncertainty, mixed up, as they frequently are, with explanatory or qualifying circumstances. The admission must be very explicit and unqualified, to dispense with the production of that which constitutes the foundation of the suit." The plaintiff, of course, cannot read any part of his own bill as evidence in support of his case, unless it is corroborated by the answer; and so much as is so corroborated may be considered as embodied in the answer, and it is, therefore, an admission of its truth. In those cases, however, in which the cause is set down for a hearing upon the bill and answer, the allegations of each are to be taken as true, except where they contradict each other; in this case, if the answer be on oath, the averments of the bill which are denied by the answer will not be taken as true." 4410. Though, at law, it is a general rule that a bill in chancery will not be evidence, except to show that such a bill did exist, and that certain facts were in issue between the parties, in order to introduce the answer or the disposition of the witnesses, and that it cannot be admitted to prove any facts either alleged or denied in the bill, yet a different rule prevails in equity, and the bill may be read in evidence by the defendant of any matter therein averred.8 This right of the defendant to read the plaintiff's bill as evidence is confined to the bill as it stands on the record; for if it has been amended, the amended bill is the only one upon record.9 4411. An answer is evidence of almost irresistible strength against the defendant who files it, or any person claiming under him, for it is a deliberate statement on oath of the truth of all it contains. It is only so far short of being conclusive that it may be proved to have been sworn to under erroneous impressions.10 The answer of an infant cannot be read against him in another suit; but it may be used against the guardian in a cause which he defends in a different capacity, for it is his admission upon oath." When, instead of replying to the defendant's answer, the plaintiff sets down the cause for hearing on bill and answer, the defendant is at liberty to read his answer as evidence in favor of his own case, and the decree is made on the assumption that every fact stated by the defendant is true.12 If. the plaintiff files a replication, he precludes the defendant from reading his answer, except as to costs, and imposes upon him the necessity of proving the statements therein contained by an examination of witnesses. The answer of the defendant may be read on a question of costs to the extent only of showing that, either from some offer or some statement contained in it, the whole or part of the costs incurrred subsequent to the answer were unnecessary." 5 Cox v. Allingham, Jac. Ch. 339. 6 Gaskill v. Sine, 2 Beasl. Ch. N. J. 130; Buntain v. Wood, 29 Ill. 504; Rogers v. Mitchell, 41 N. H. 154. 7 Tainter v. Clark, 5 All. Mass. 66; Rogers v. Mitchell, 41 N. H. 154. Ives v. Medcalfe, 1 Atk. Ch. 63. 9 2 Daniell, Chanc. Pract. 398, 399. 10 Weider v. Clark, 27 Ill. 251. "Beasly v. Magrath, 2 Schoales & L. Ch. Ir. 34. The admissions in the answer of a guardian ad litem do not dispense with the necessity of proof. Chaffin v. Kimball, 23 Ill. 36. 12 Trout v. Emmons, 29 Ill. 433. 18 See Culbertson v. Lucky, 13 Iowa, 12. An answer not sworn to or sworn to when not required is of no force as evidence, but merely puts in issue the allegations of the bill. Morris v. Hoyt, 11 Mich. 9; Wilson v. Holcomb, 13 Iowa, 110; Dorn v. Bayer, 16 Md. 144; Rainey v. Rainey, 35 Ala. N. s. 182. 14 Smith, Chanc. Pract. 340; 2 Daniell, Chanc. Pract. 404. |