a Lucas v. Livingston v. Gibbons, 6 John. Ch. och Rep. 256. 62 H. & M. 391. 1 Peters' U.S. Rep. brought by the bank on seven of said notes in the Circuit JANUARY 1880. Court of Montgomery, Alabama, and that at March term, 1825, judgments were rendered in his favor; and that subsequently, twelve suits were brought on the judgments Bk. of Darien.. rendered in Georgia on the twelve notes," &c. This is deemed a sufficient recognition of the judgments, to constitute an acquiescence in, and adoption of them, and to estop him from denying their validity in equity. It has been adjudged, that where an injunction has been voluntarily dissolved by the plaintiff, or having been dissolved by an order obtained by his agent or solicitor, without his knowledge or consent, but which was afterwards recognised and acted upon by him, the injunction will not be renewed upon his petition, without some new and special reasons, which did not exist when the injunction was originally granted or dissolved. a An imperfect right or title, or an invalid proceeding, may be ratified and confirmed by the acquiescence and adoption of the person having the right to avoid them, or by his acceptance and enjoyment of benefits under them. An administrator who goes to trial upon a plea of payment, though in good faith, and not knowing the effect of a finding against him on that plea, on verdict against him, will not be relieved by being permitted to plead plene administravit, although he swear that he had a good defence upon this plea.c The admissions of a plaintiff, or defendant, will, 'in general, conclude none but himself, not his co-plaintiff, or defendant, unless they are his partners. d The principle that a defendant may plead several pleas in the same suit, and have the benefit of each, separately, has not, it is conceived, a just application to the case, where, in a former suit, the party has pleaded a matter of fact, succeeded in that suit, and enjoyed a benefit from it, and afterwards seeks to avoid the same matter by bill. With respect to the effect of the replication of nul tiel record, I am of opinion, equity can deny these defendants nothing on that ground. They profited nothing by it; it was appropriate and necessary to elicit a decision of the Court on the effect of the record; without it, they must have withdrawn the suits and waived the question; the decision was against them, and they have proceeded to abide its consequences. It is also objected, "that the answer sets up new matter in avoidance of the allegations in the bill; and that those matters should have been proven on the trial; otherwise, all the allegations in the bill may be admitted, and 146. c Martin v. Sarles, 4 d Cowen, 24. Dan v. Brown, ibid, 492. Vide the other authorities cited to this point. Lucas V. al Wash. Rep. 224. JANUARY 1830. yet be avoided by matter not responsive to the bill, and which would necessarily compel the complainant to prove a negative." I subscribe to the general principle, "that Bk. of Darien. the answer of a defendant in Chancery, is not evidence where it asserts a right affirmatively in opposition to the plaintiffs demand. A case chiefly relied on in support of this objection, is, that of Beckwith v. Buller et al. a There, the bill was filed against Beckwith, as executor of his father, praying a distribution of his personal estate, and to set aside a deed made by the testator to the executor, for fourteen slaves, upon a suggestion of fraud in obtaining it. The answer denied the fraud, and contended the deed was but a reasonable provision for him, the heir of the family and title, otherwise unadvanced. He further alleged there was little other estate, except a debt due by bond, which his father gave him in his lifetime, as a compensation for his having consented to the sale of a large English estate, which would have descended to him. The Court recognised the general rule as above stated, and said, in such case "the defendant is as much bound to establish his answer by indifferent testimony, as the plaintiff is to sustain his bill; and that it would be monstrous, if an executor, when called upon to account, were permitted to swear himself into a title to a part of his testator's estate:" and in a much later Virginia decision, the same rule was adopted, and a title to real estate affirmatively asserted by the answer, in opposition to the plaintiff's demand, and which had not been advanced or charged in the bill, was rejected for want of other proof. ¿Paynes v. Coles, 1 Munt. 395. 2 John. Ch. Rep. 62. с The extent and application of this rule, though supposed by Chancellor Kent, in 1816, to have been well settled, not only in the English jurisprudence, but equally in our own, has continued to present difficulties, and produce conflict of decision. In the case of Hart v. Ten Eyck, the distinguished Chancellor alluded to, expressed his approbation of the rule as explained in a case before Lord Cowper, as early as 1707. In the old case, the bill had been filed against an executor for an account; he answered, that the testator left 1100/. in his hands, and that afterwards, on a settlement with the testator, he gave his bond for 10007. and the other 1007. was given him by the testator for his care and trouble. There being no other evidence, the answer was put in issue; and "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 Lucas V. the defendant must make out by proof, what was insisted JANUARY 1830% on by way of avoidance; that there was this distinction to be observed, that when the defendant admitted a fact, and insisted on a distinct fact by way of avoidance, he must Bk. of Darien. prove it," &c. "But if the admission and avoidance had consisted of a single fact, as if he had said the testator had given him 1007. the whole must be allowed, unless disproved." And Chancellor Kent remarks, "that the distinction in the application of the rule is not between Courts of law and equity, but between pleadings and evidence. If an answer is introduced collaterally, and merely by way of evidence in chancery, it ought to be treated precisely as in a Court of law. If in a Court of law, the plea confesses the matter in demand, but avoids it by other circumstances, the proof of avoidance is incumbent on the defendant; that the same distinction had been lately taken in the case of Ormond v. Hutchinson, before Lord Erskine; a that a 13 Vesey 47. when passages are read from an answer which is replied to, and is not an answer to a mere bill of discovery, they are not read as evidence, in the technical sense, but to shew what the defendant has admitted, and which therefore need not be proved; that the only necessary explanation accompanying the rule is, that you must not stop short with a sentence, so as to garble a single fact, but you must read the answer so as to complete the immediate subject to which the defendant is answering." He also refers to the case of Thompson v. Lamb, in which b Note A. 91. Lord Eldon said, "he was clearly of opinion a person c7 Vesey 587. charged, cannot by his answer discharge himself; not even by his examination before the master, unless in this way; if the answer on examination states, that upon a particular day he received a sum of money and paid it over, that may discharge him; but if he says, on a particular day he received a sum of money, and upon a subsequent day he paid it over, that cannot be used in chancery, for it is a different transaction." To this I have only to remark at present, that it appears to me to be refinement, rather contracted. In the case under review, of Hart v. Ten Eyck, the bill required an account of the administration, &c. The defendant answered and exhibited an account, containing charges both in favor of, and against himself; on the debit side of the account, some of the items were not supported by proof, unless the answer was evidence. After an elaborate examination of the principle, the Chancellor Lucas V. Bk. of Darien. a Woodcock v. Bennet, 1 Cowen 711. and see note A.744. JANUARY 1850. ruled that the items in the adminitrator's account, which were without proof should be rejected, as new and distinct matter set up in avoidance. This decree, however, appears to have been reversed on this point in the Court of errors, but this latter decision has not been reported. It is only referred to in a subsequent case. In this latter case the same principle was involved. The complainant claimed the benefit of articles of agreement, which the defendant had in his possession and contended had been rescinded by consent. The bill called him to answer the matters alleged, as to the making the contract, how it was disposed of, when, where, and how the defendant got possession of the agreement, and under what pretences. The defendant answered, that by the consent of all parties, the articles were taken up and rescinded; the seals being torn off by the express consent and agreement, and in the presence of the complainant. This part of the answer was held to be legal and competent evidence, because it was responsive to the bill, and within the discovery sought. The cases may not be strictly parallel; the objection in the case under consideration is perhaps more plausible than in the one last referred to. Here, however, the plaintiff' charges as a material allegation in the bill, that at March term, 1825, judgments were rendered in his favor; unless this allegation was intended to imply a former recovery in his favor on the merits, and was offered as matter in bar, it is difficult to define its object, or it would appear to be nugatory. If it was intended as a bar to the defendant's right to prosecute his suit at law, and the latter was required to make answer to the fact of a former recovery, he could not, in justice to himself, admit the fact of a recovery simply, without stating also that the trial was not on the merits; and as he was required to answer respecting a part of the record, which would be indefinite and unintelligible alone, it would appear necessary that he should have described the whole, at least so much as would shew the legal effect of the part charged. I think it entirely equal to an averment that he, the defendant, had received a particular sum of money, and paid it over at the same time, and this expressed in the same sentence, which as it is shewn, has been adjudged proof. The whole force and effect of the judgments in question, are within the scope of the relief sought. I think it may be assmilated to a case in which the defendant is required to answer, if he did not owe a particular sum of money; and the answer is, that he Lucas is under contract to pay that amount, but by the terms of JANUARY 1830. the agreement it is to be paid in a currency under par, or that he did owe the sum, but has discharged the debt. In either of these supposed cases, the effect of the general Bk. of Darien admission of the charge cannot appear, unless in connexion with the explanation in avoidance. As to the difficulty or necessity of disproving this part of the answer, or the temptation to falsehood in relation to it, the subject is deemed peculiarly favorable to the answer; it refers by exhibiting a copy of the plea, to a record in the same Court, so that the proof was rendered equally accessible to either party, requiring only a reference to the records of the Court in which this suit was tried, for conclusive evidence on the point. The principle is the same in this revising tribunal, that it was in that, and if the proof was sufficient there, it is equally so here. I am also inclined to regard this, rather in the nature of a bill for an injunction and discovery, than for general relief; that its legal effects, so far as can be available, must be to make the chancery ancilliary to the law tribunal, by eliciting facts within the knowledge of the defendants, to be used as evidence in the latter. In this view of the case, the objection as to new matter in avoidance, is at least less appropriate than in a case proper for general relief. But another answer to this objection urged for the defendants, is not unworthy of consideration; it is, that their answer has not been legally put in issue. It appears that the cases referred to, in which the sufficiency of the answers as proof of the facts stated, has been denied, have been cases in which the answers have been put in issue, by which I understand, according to the practice in England, and most of the States, the complainant must reply; and although replications with us have been dispensed with by statute, yet I think the intention to contest the facts, must in some way be indicated, and it can be conveniently done according to the practice in some of the States, by setting the cause for hearing on bill, answer and proofs. a This cause appears to have been set down for hearing, on motion of the plaintiff, on bill, answer and exhibits, or at least, without other proof, or any leave to take testimony, and immediately on the dissolution of the injunction. The defendants may not have sought time or leave to take testimony; had they done so, perhaps they could have obtained it, but the course adopted by the plaintiff implied no intention to put a 1 Vide 7 John. Bibb 277. Ch. Rep. 223. |