.Bill in Chancery. Snow v. Ch.II. f. 2. merly confidered as evidence against the plaintiff, of any fact ftated in it; but in modern times, Courts, properly confidering that moft of the facts are the mere fuggeftion of counfel to extort an answer from the defendant, have held that it is no evidence for any other purpofe, than merely to fhew, that fuch a bill was in fact filed, or to prove fuch facts as are the fubject of reputation and hearfay evidence, as the plaintiff's pedigree and the like. Bul. N. P. 235. Doe dem Bowerman, v. Sybourn, 7 T. Rep. 2. Taylor v. Cole, cited note (a). That the ANSWER of a defendant is evi7 T. R. 3, dence against the perfon fwearing it, there can be no doubt, for if the admiffion of Anfaver and a man is received as proof of a fact against Affidavit. him, much more ought that confeffion Godb.326. which he makes on oath; but ftill it is confidered as a confeffion only, though under a higher fanétion, and therefore is admitted in no cafe where a confeffion would not be Ecclefton evidence; for which reafon the anfwer of alias Speke an infant by his guardian who is fworn to Carth. 79. it, is not received as evidence against his rights; and doubts have been entertained how Wrottef- far a feme covert fhould be prejudiced by hor ley v. Ben- anfwer (h) v. Petty, difh, 3 P. Will. 235. The (b) Wrottefley v. Bendish, 3 P. Will. 235. In this cafe, where the question was, whether the wife fhould anfwer jointly with her husband or not, the Lord Chancellor faid, "I do not now give any opinion whether the answer may be read against the wife, when difcovert, or not, but as in all times heretofore, the wife as well as the husband, has been compelled to answer, I would not The confequence which follows from the anfwer being confidered as an admiffion only, is that the objection that it was res inter alios acta, does not apply as in the cafe of other legal proceedings, therefore in an action against B. the anfwer of A. his partner, to a bill filed against him by other creditors, was admitted as evidence of the facts stated in it; as was alfo the voluntary affidavit of one man, who was jointly interefted with another in an action brought against them both." I We have before feen that a copy of the whole judgment, and not a partial extract of it must be produced to the jury: the reafon on which the rule was eftablifhed, applies with equal force to proceedings in a Court of Equity, and indeed every other written inftrument. The defendant is entitled, in a Court of Law, to have the whole of his anfwer read, and fo far was this rule carried in one cafe, that where one anfwer had been put in by the defendant, and on exceptions taken to it, he put in a fecond anfwer, he was allowed on an information for perjury to read the fecond anfwer in explanation of the general terms of the first. When, therefore, an answer is given not take upon myself to overthrow what has been the conftant practice;" but his Lordship said he would not compel her to anfwer any thing which might fubject her to a forfeiture, though the husband fubmitted to answer. Ch. II.f.2. in evidence, the party producing it makes the Answers whole of it evidence for the defendant, of the Chancery. facts ftated in it; (i) ftill, though evidence in of (i) In Courts of Equity a different rule prevails, the plaintif may there felect a particular admiflion, and when that is read, the defendant is obliged to prove the other facts stated in his anfwer by other evidence: Thus where to a Bill by Creditors againЯ an executor for an account, the executor anfwered that 1100l. was depofited by the teftator in his hands, and that afterwards on making up his amounts with the teftator, he gave a bond for 1000l. and the other 100l. was given him for his trouble and pains in the teftator's bufinefs: though there was no other evidence that the 1100l. was depofited but the executor's own oath, it was held, that when an answer was put in iffue, what was confeffed and admitted in it need not be proved by the plaintiff, but that it behoved the defendant to make out by proofs what was infifted on by way of avoidance. But this was held under this diftinction: when the defendant admitted a fact and infifted on a diftinct fact by way of avoidance, then he ought to prove the matter in his defence; because it may be probable that he admitted it out of apprehenfion that it might be proved, and therefore fuch admittance ought not to profit him, fo far as to pass for truth, whatsoever he fays in avoidance: but if it had been one fact, as if the defendant had said the teftator had given him 100l. it ought to be allowed, unless disproved; because nothing of the fact charged is admitted, and the plaintiff may difprove the whole fact as fworn, if he can do it. And it being urged, that here the probability was on the defendant's fide, because the teftator did not take a bond for this fum as for the refidue, the Chancellor faid there was fome prefumption in that, but not enough to carry fo large a fum without better atteftation. Anony. Hill. Vac. 1707. per Cowper Chan. Gilb. Lav Ev. 52. I have been particular in extracting the whole of this cafe, because perhaps no other betfer fhews the diftinction between the rules of evidence in the common Law Courts, and thofe poffeffing an equitable jurisdicdiction. In a Court of Law, it would have been faid, as was urged in this cafe, that " If a man was fo honeft as to charge himfelf when he might roundly have denied it, and no teflimony could of those facts, it is not conclufively fo, but the plaintiff may contradict it by other evidence; or if the jury from the whole circumftances of the cafe fee reafon to believe one part of it, and to difbelieve another; they may ufe the fame difcretion in this inftance, as in every other of drawing fuch conclufion, as refults from all the circumftances taken together. There is one instance, however, in which a part of an answer may be read without making the whole evidence, and that is where a perfon offered as a witnefs, has, in an answer, fhewn himself interested in the event of the caufe; the part of the answer which is read for the purpose of rejecting his teftimony, does not entitle him to have any other part read, and this for the beft of all poffible reafons, viz. that by doing fo, the very purpofe for which it was produced, would be defeated, and he would be giving his teftimony in the anfwer at the time that it appeared, that all evidence from him was inadmiffible. Similar to an anfwer is an affidavit of a man in the courfe of a caufe; but a voluntary aflidavit, or one not made in the courfe of a judicial proceeding, as for inftance, one made could have appeared, he ought to obtain credit when he fwears in his own discharge." My habits of thinking and legal notions having been formed in Courts of Law, may perhaps have given me an unfair prejudice in favour of their rules; but I do confess that, to me they appear, in this particular at least, most confonant to reafon and justice. by Smith v. Ch.II.f. 2. by the vendor of an eftate before a Mafter in Affidavit. Chancery, to fatisfy the purchafer that the eftate was free from incumbrances, cannot be proved without producing the original, and if meant to be relied on as a reprefentation upon oath, must be proved alfo to be fworn; for if only the hand-writing be proved, it has no further effect than an admiffion in a note Gilb. Law or letter, whereas the anfwer in Chancery always being on oath, it is in all civil cafes taken to have been fworn without further proof than copies of the proceedings in the cause; and even on an indictment for perjury, proof of the handwriting of the mafter before whom it purports to be fworn, and of the defendant himfelf, has been held fufficient evidence of the adminiftration of the oath. Ev. 57. Rex v. Morris, 2 Burr. 1189. Depofitions. Tilly's The next kind of proceedings which generally come from the Court of Chancery, are the depofitions of witneffes; and as the depofitions taken in other Courts ftand on the fame foundation, I fhall here confider them together. Thefe are not received on the fame principle as the anfwer, namely as an admiffion of the party, but as the next beft evidence in the room of fome other, which his adverfary has been deprived of; and therefore it is, that in no cafe where a witnefs is living and to cafe, Salk. be found, (k) fhall his depofition be read as 286. evidence (k) In Tilly's cafe, the witness after examination became interested, and was a party in the cause, and Trevor C. J. at first thought that |