4412. With respect to constructive admissions, the most ordinary instance of them is, when a plea has been put in by a defendant, either to the whole or a part of the bill; in that case, the bill, or that part of it which is pleaded to, so far as it is not controverted by the plea, is admitted to be true. When the plaintiff has replied to a plea, he may, therefore, rest with that admission, and need not go into evidence as to that part of his case which the plea is intended to cover, unless the plea is a negative plea, in which case it will be necessary to prove the matter negatived, for the purpose of disproving the plea in the same manner, that he may enter into evidence for the purpose of disproving the matter which has been pleaded affirmatively.

For the same reason, where a special replication is put into an answer, all those parts of the answer which are not denied by the replication are admitted to be true.

4413. There is a great difference between actual and constructive admissions, with respect to the manner in which they are represented to the court; the former are read to substantiate the case of the party reading them, in the same manner as other proofs in the cause; the latter are presented to the court at the outset of the hearing, by the counsel opening the pleadings, for the purpose of showing what are the matters in issue between the parties."

15

4414. Admissions by agreement between the parties are in general made to save expense or to prevent delay. They should be in writing and in explicit terms, without ambiguity, and signed by the parties or their solicitors, the solicitor employed by the party being considered sufficient to bind his principal, as it is inferred that he had authority for that purpose.

The parties of course may admit what they please, but they are not allowed to make admissions which will violate the known principles of law; as, where a husband was willing his wife should be examined as a witness against him in an action for a malicious prosecution.16

4415. When the facts are not admitted by an actual agreement, nor by implication, they must be proved, and the first question to be considered is, upon whom is the burden of proof, or the onus probandi, cast.

It has already been laid down as a general proposition that the point in issue is to be proved by the party who asserts the affirmative, according to the principle of the civil law: ei incumbit probatio qui dicit, non qui negat."

Thus, in general, it rests upon the complainant to establish by evidence aliunde the truth of the matters alleged in his bill; 18 and even where a decree is asked for, that the bill be taken pro confesso, the defendant being in default, the court in its discretion may yet require further evidence."

19

20

A sworn answer which is responsive to the bill is equivalent to the testimony of a disinterested witness in dispute of the allegations of the bill. So far as the answer sets up new matter it must be proved aliunde."

4416. As the party on the other side does not come prepared to answer any thing but what is put in issue, it is a fundamental maxim, in equity, as well as at law, that no proof can be omitted of any matter which is not noticed in the

15 2 Daniell, Chanc. Pract. 397.

16 Barker v. Dixie, Cas. temp. Hard. 264.

"Dig. 22, 3, 2; Tait, Ev. 1; 1 Phillipps, Ev. 194; 1 Greenleaf, Ev. & 74; Dranguet v. Prudhomme, 3 La. 83; 2 Daniell, Chanc. Pract. 408. See before, 3092.

18 Crasse v. Brigham, 3 Stockt. Ch. N. J. 29; Jones v. Jones, 13 Iowa, 276.

19

Stephens v. Bicknell, 27 Ill. 444; Cook v. Woodbury, 13 Iowa, 21.

20 Rich v. Levy, 16 Md. 74; Culbertson v. Lucky, 13 Iowa, 12; Johnson v. Richardson, 38 N. H. 353; see Cooper v. Tappan, 9 Wisc. 361; Bostick v. Love, 16 Cal. 69. Otherwise if the complainant sets down the matter Rogers v. Mitchell, 41 N. H. 154.

"White v. Hampton, 10 Iowa, 238. for a hearing on the bill and answer.

pleadings. It is for this reason that, in the frame of bills, an introduction of every fact which the plaintiff means to prove is required, and that a defendant must state in his answer every thing of which he intends to avail himself in his defence.22

4417. But to the rule thus broadly laid down there are certain exceptions. The cases in which these exceptions are principally applicable are those where the character of an individual, or his general behavior, or quality of mind, comes in question; as, when, for example, it is alleged that a man is non compos, it is the experience of every day that you may give particular acts of madness in evidence, and not the general evidence only that he is insane. For the same reason where a bill charges that a man is addicted to drinking, and liable to be imposed upon, the plaintiff is not in general confined to prove drunkenness generally, but particular instances are allowed to be given. In like manner where a bill charged that the defendant was a lewd woman, evidence of particular acts of incontinence was allowed to be read.23 In cases of this nature, however, it is necessary in order to entitle the party to read evidence of particular facts that they should be pointed directly to the charge.

24

4418. It is not only a rule that the evidence must be confined to the issue, but that the substance of the case made out by the pleadings must be proved; that is, all the facts in the pleadings which are necessary to the case of the party alleging them, and which are not the subject of admissions, either in the pleadings or by agreement, must be established by evidence.25

4419. Not only must the substance be proved, but the evidence must be substantially the same case as that which the party has stated upon the record; for the court will not allow the party to be taken by surprise by a case proved on the other side, different from that upon the record, as set up by him in his pleadings.

4420. When treating of the evidence which might be given in a suit at law, the subject of documentary evidence was so fully examined that it will be unnecessary here to repeat the rules there laid down.26

4421. By oral testimony is meant the spoken evidence given by a witness. As to the manner in which it is given in chancery, it is proper to consider the competency of the witnesses, their examination by an examiner, their examination under a commission, of depositions taken under the act of congress, demurrers to interrogatories, proceedings on the return of the evidence.

4422. The first subject has been fully considered in another place." 4423. Witnesses in chancery are not in general examined as they are at law in open court in the presence of the judges. There are three modes of examining them, namely, by an examiner appointed by the court, or by commission under the seal of the court, or under the act of congress.

When the witnesses reside within the distance prescribed by law or the rules of the court, it is usual to apply to the court to appoint an examiner, who is generally a counsellor or solicitor in the court, who is thereupon authorized to take the depositions of the witnesses for either party.

In general, the witnesses attend voluntarily before the examiner, but should they refuse, they may be compelled by subpoena and attachment for contempt for disobeying it.

Interrogatories in writing are sometimes filed, and these are to be answered

22 2 Daniell, Chanc. Pract. 411.

23 Clark v. Periam, 3 Atk. Ch. 333, 340.

24 Clark v. Periam, 3 Atk. Ch. 333; Sidney v. Sidney, 3 P. Will. Ch. 269; see Wheeler

v. Trotter, 3 Swanst. Ch. 174, n.

25 2 Daniell, Chanc. Pract. 415.

26 Before, 3094, et seq.

27 Before, 3159, et seq.

by the witness, but in some jurisdictions questions are asked of the witnesses by the solicitors or counsel of the parties.

Before the witness is examined, the examiner administers an oath or affirmation to him. In the examination he is not bound by the interrogatories to the letter, but he ought to explain every matter to the witness which arises necessarily upon them. He ought to put the interrogatory to the witness, take down the answer in writing upon paper, concluding the answer to each interrogatory before another is put.28

When all the interrogatories have been gone through, the examiner should carefully read the whole of the deposition to the witness, who, if he be satisfied with it, signs it, or, which is the safer mode, signs each sheet in the presence of the examiner. If he wishes to vary his testimony, or to make any alteration in or addition to it, he must do so before signing the deposition; for after it is complete, there is no reason why he should not sign it before leaving the examiner. So important is the signature of the witness to his deposition that should he die after his examination is completed, and before it is signed, the deposition cannot be made use of. It seems, however, that if a witness, having signed his examination in chief, dies before he is cross-examined, his deposition may be read in evidence; the court, however, bearing in mind that the cross-examination had not taken effect, especially if it appeared that the party had lost any material fact which was within the knowledge of the witness, and could not have been proved by other means.

30

4424. When a witness resides or is abroad, so that his attendance cannot be procured before the examiner, a commission to take his deposition may be issued. This is done either by leave of court, specially granted, or by virtue of a general rule of the court, or of some legislative act.

Interrogatories are filed in the proper office, and notice is given to the opposite party or his counsel of the same. Within the time prescribed by the rules of the court, cross-interrogatories may be filed. Commissioners may be named by either party, and then the commission issues. This authorizes the commissioners to call before them the witnesses and to take their depositions in writing; and commands them to return the same, together with the interrogatories and the writ, sealed up, generally within the time therein limited; but before they proceed to the examination of witnesses, it directs them severally to administer the oath accompanying the commission to each other, and also to the clerk or clerks employed in transcribing or engrossing the depositions.

The commissioners execute the commission by reducing to writing the several answers to the interrogatories as the witnesses give them, having first administered an oath or affirmation to each witness to make true answers to the said interrogatories, and also to the clerk or clerks employed to take and write down, transcribe, and engross the depositions of all and every the witness and witnesses produced and examined by the commissioners, or any of them named in the commission.31

After the commission has been thus executed the commissioners annex the deposition of the witnesses to it, together with a copy of the oath they have taken, and indorse on the commission, "The execution of this commission appears in certain schedules hereto annexed;" this is signed by the commissioners; they next wrap the whole in an envelope, which is sealed, and the names of the commissioners written upon it. It is then addressed to the person designated,

28 2 Daniell, Chanc. Pract. 483.

29

Copeland v. Stanton, 1 P. Will. Ch. 414.

30 O'Callagan v. Murphy, 2 Schoales & L. Ch. Ir. 158.

81 2 Daniell, Chanc. Pract. 499; 1 Smith, Chanc. Pract. 367.

and is either delivered to a messenger, or put into the post office, to be transmitted by mail.32

4425. In the courts of the United States, depositions may be taken under the act of congress without giving notice. By the rules of practice for the courts of equity of the United States, it is ordered that in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examination of the witnesses, either under a commission or by a new deposition taken under the act of congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable.33

4426. By a demurrer to interrogatories is understood the reasons which a witness tenders or assigns for not answering a particular question in interrogatories.34 Every witness is bound by the form of the oath administered to him previous to his examination "to make true answers to all such questions as shall be asked of him upon the interrogatories" filed for his examination. If this obligation were to be strictly insisted upon, it might, in many cases, be productive of great injury either upon the witness himself or upon others, by compelling him to disclose matter which it is against the principles by which the courts are usually governed that he should discover. In a court of law, a witness has it in his power immediately to take the opinion of the presiding judge as to his right to withhold an answer to any question which may be put to him; but in courts of equity a witness has no such power, nor can the examiner or commissioner before whom a witness is examined, not being authorized to pronounce a judgment as to the propriety of the question put to the witness; still the witness is not left without a remedy, and a method is provided by which he may submit his objection to answer the various questions proposed to him to the decision of the judge. This is done by a demurrer to interrogatories.35

The word demurrer has not the same meaning as when it is applied to a bill; there is a marked difference. Demurrers to interrogatories differ from demurrers to bills in this, that the former depend upon extrinsic facts, and are supported and opposed by affidavits.36 The witness states on oath his reasons for refusing to answer,37 which are taken down and sworn to by him, with the interrogatories.

4427. There is no particular form either for the demurrer or for the affidavits, and only one material restriction, namely, that the witness must not state what would have been the effect of his answer if given, for that would allow evidence to transpire before publication has regularly passed.38

The grounds upon which a witness may protect himself from answering to interrogatories are nearly the same as those which a defendant has a right to insist upon as a reason for not giving the discovery required by the bill. These are principally reduced to two: that he is incompetent to give the evidence demanded of him, as that he is a party interested, or that the information required of him was obtained professionally, or he may state a particular privilege which permits any individual to remain silent, when a direct answer might subject him to penalties.

4428. The ground of objection to an interrogatory because the witness has an

32 1 Smith, Chanc. Pract. 369, 370.

33 Rules of the United States Courts, Rule 68.

Parkhurst v. Lowten, 2 Swanst. Ch. 194.

35 2 Daniell, Chanc. Pract. 354, 355.

36 Nightingale v. Dodd, Mosel. Ch. 229; Parkhurst v. Lowten, 3 Madd. Ch. 266. 37 Bowman v. Rodwell, 1 Madd. Ch. 266.

38 Parkhurst v. Lowten, 2 Swanst. Ch. 213.

interest, that is, that the answer to it may lead to a decree against him, is available in those cases where the witness is a party to the suit, or has a direct interest in the subject matter.

39

40

4429. The objection on the ground of professional confidence proceeds upon the same principles as are applicable to the case of defendants by which counsel, attorneys, solicitors, and proctors are restricted in their testimony. They are not permitted to disclose any information which they may have obtained in the capacity of professional advisers. They are considered as the same person with their clients, and are entrusted with their secrets. As a professional man, well acquainted with the facts and pleadings, is or ought to be himself best able to fix the point beyond which his examination cannot properly be extended, the objection is generally brought before the court in the form of a demurrer to interrogatories; but the right to withhold the answer is the privilege not of the witness but of the client; it amounts to a species of incompetency. One of its properties is that it may at any time be waived by the client.

4430. When the right of the witness is a personal privilege, and he chooses to waive it, he may do so, and he will be competent. The objections usually made to answering interrogatories, and which are the grounds of demurrer, are four in number.

An

4431. No man is bound to criminate himself; he may therefore demur to an interrogatory the answer to which, however remotely connected with the fact, might have a tendency to prove him guilty of a crime or misdemeanor." instance, showing the great extent to which this principle has been carried, occurred at nisi prius. In an action for a libel, in the shape of an extra-judicial affidavit sworn before a magistrate, it was held that the magistrate's clerk was not bound to answer whether, by the defendant's orders, he wrote it out and delivered it to the magistrate, because copying and showing a libel is assisting to publish it.12

4432. Whenever the answer to the interrogatory might subject the witness to a forfeiture of his estate, or any thing in the nature of a forfeiture, he may demur; the rules respecting this ground of protection are very similar to those where the ground of protection is a penalty.

4433. A man's honor is as valuable as life itself, and the law will not permit it to be unnecessarily assailed, and will protect it. A witness may demur to an interrogatory the answer to which may show disgraceful conduct on his part. The principal question in cases of this kind is what shall be so considered." Indeed, a case may be found where a demurrer by a witness to answer an interrogatory defamatory of a third person, and not material to the case, was allowed.45

4434. Whenever it is against public policy that the witness should disclose his knowledge of facts, he may demur to interrogatories requiring him to testify as to them. Thus, a grand juryman may demur to a question requiring him to disclose what passed in the jury room; one who possesses secrets of state, the disclosure of which would be prejudicial to the public interest, may

mur.

39 2 Daniell, Chanc. Pract. 556, 557.

46

de

40 Gilbert, Ev. 138; Parkhurst v. Lowten, 2 Swanst. Ch. 194, where the cases are collected.

"Paxton v. Douglass, 16 Ves. Ch. 242, 19 Ves. Ch. 227.

42 Maloney v. Bartley, 3 Campb. 210.

43 Lord Uxbridge v. Staveland, 1 Ves. Ch. 56.

"See Matter of Kip, 1 Paige, Ch. N. Y. 601.

45 Parkhurst v. Lowten, 2 Swanst. Ch. 198, n., where is cited Mulgrave v. Lord Dunbar. 46 1 Greenleaf, Ev. 250; Gresley, Ev. 68. See Gray v. Pentland, 2 Serg. & R. Penn. 23; Goter v. Sanno, 6 Watts, Penn. 150; Law v. Scott, 5 Harr. & J. Md. 438.