when a decree or decretal order shall not have been made thereon,1 issue shall be joined by filing a replication, to the form and effect of the replication now in use; and where a defendant shall not have been required to answer, and shall not have answered the plaintiff's bill, he shall be considered to have traversed the case made by the bill." 2

By the 28th Order of August, 1852, "Where a defendant shall not have been required to answer, and shall not have answered the plaintiff's bill, so that under the 26th section he is to be considered as having traversed the case made by the bill, issue is nevertheless to be joined by filing a replication in the form or to the effect of the replication now in use.3

With respect to the time when a replication should be filed, it may be observed, in the first place, that when an answer is filed, the plaintiff may reply to it immediately; but by the 16th Order of May, 1845, "When the plaintiff amends his bill, without requiring an answer to the amendment, and no answer is put in thereto, and no warrant for further time to answer the same is served within eight days after service of the notice of the amendment of such bill, the plaintiff is, after the expiration of such eight days, but within fourteen days from the time of such service, either to file his replication, or to set down the cause to be heard upon bill and answer, otherwise any defendant may move to dismiss the bill for want of prosecution." By the 40th article of the same Order," Where the plaintiff amends his bill without requiring an answer to the amendments, and a defendant, within eight days after the service of the notice of the filing of the amended bill, serves a warrant for further time to answer the amendments, but the Master refuses to grant such further time, the plaintiff is, within fourteen days after such refusal, either to file his replication, or to set down the cause to be heard on bill and answer, otherwise any defendant may move to dismiss the bill for want of prosecution." 4

1 See Duffield v. Sturges, 9 Hare, Appx. 88, as to the meaning of this section. Under fit circumstances, notice of the filing of the replication may be advertised if it cannot be served; Barton v. Whitcombe, 17 Jur. 81; 16 Beav. 206. Duffield v. Sturges, 9 Hare, Appx. 87.

See 66th Equity Rule of the United States Courts; Rule 15, of the Reg. of Prac. in Chan. in Mass. In reference to extending the time to reply, in New York, see The Sea Ins. Co. v. Day, 9 Paige, 247; Kane v. Van Vranken, 5 Paige, 63. If the plaintiff wishes to amend his bill, and a special application to the

By the 41st article of the same Order, "If a defendant puts in an answer to amendments, to which the plaintiff has not required an answer, the plaintiff must, within fourteen days after the filing of the bill, either file his replication, or set down the cause to be heard on bill and answer, unless in the mean time he obtains from the Court a special order for leave to except to such answer, or to amend the bill, otherwise any defendant may move to dismiss the bill for want of prosecution."

We have before seen that, after a replication has been filed, a plaintiff, if he wishes to withdraw it, and amend his bill further than by adding parties, must make a special application for leave so to do; in which case, in addition to the affidavits usually required, when an application for leave to amend, a further affidavit is necessary, showing that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into the bill.

A plaintiff has also been permitted, on motion, to withdraw his replication, and set his cause down for hearing upon bill and answer.1

Court for leave to do so is necessary, he should not file a replication, but should obtain an order to extend the time for filing the replication, until after the decision of the Court upon the application to amend. Vermilyea v. Odell, 4 Paige, 122. If the plaintiff files a replication to the answer after he is apprized of the necessity of an amendment of his bill, he precludes himself from making such amendment. Ib.

1 Rogers v. Grove, 17 Ves. 130; Brown v. Ricketts, 2 John. Ch. 425.

CHAPTER XXI.

OF EVIDENCE.

PART I.- OF THE MATTERS TO BE PROVED.

SECTION I. Of Admissions.

THE cause being at issue, by the filing of the replication, the next step to be taken by the plaintiff is, to prepare his proofs. The defendant also if he has any case to establish in opposition to that made by the plaintiff, must, in like manner, prepare to substantiate it by evidence.1

In order to this, the first consideration with both parties must be the question, what is necessary to be proved? — and, having decided upon that, they must then consider the manner in which the proof is to be effected. In the following Chapter, therefore, a few pages will be devoted to a brief consideration of the matters necessary to be proved, both on the part of the plaintiff and of the defendant.

With respect to this point, it may be laid down as an indisputable proposition, that whatever is necessary to support the case of the

1 In New Hampshire the rules in Chancery provide for the trial of the cause on depositions. "The plaintiff's depositions in chief shall be taken within two months from the expiration of the time allowed for the delivery of the replication, and the defendant's depositions in chief within three months from the same time, unless further time shall be allowed by the Court, or by a Justice on petition and notice to the other party." Rule 23, of Chancery Practice. "Rebutting evidence may be taken by either party, within one month after the expiration of the time allowed for taking the depositions in chief of the defendant. Special orders may be made by the Court or by a Justice, upon petition and due notice, enlarging or reducing the time of taking testimony of either or both the parties." Rule 24, 38 New Hamp. 609, 610.

In Maine, "all testimony is to be taken in writing, by virtue of a commission issued on interrogatories filed with the clerk," &c. The formalities to be observed in taking, filing, abstracting, and producing the evidence are minutely pointed out in Rules 13, 14, 15, 16, 17, 18, Chancery Rules, Maine, 37 Maine, 585, 586.

In Massachusetts, the evidence in proceedings in Equity is required to be taken in the same manner as in suits at Law, unless the Court for special reasons otherwise directs; but this does not prevent the use of affidavits where they have heretofore been allowed. Genl. Sts. c. 131, § 60.

plaintiff, so as to entitle him to a decree against the defendant, or, in the case of a 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.

Our object at present, therefore, must be to consider what admissions by the parties will preclude the necessity of proofs.

Admissions are either, -I. Upon the Record; or, II. By Agreement between the Parties.

I. Admissions on the Record may be: 1, constructive, i. e. those which are the necessary consequence of the form of pleading adopted; or, 2, actual, i. e. those which are positively contained in the pleading.

1. With respect to constructive admissions, the most ordinary instance of them is, where a plea has been put in by a defendant either to the whole or part of the bill; in that case, as we have seen, 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.1 A plaintiff, therefore, where he has replied to a plea, may rest satisfied with that admission, and need not go into evidence as to that part of his case which the plea is intended to cover,2 unless the plea is a negative plea, in which case it will be necessary for him to prove the matter negatived, for the purpose disproving the plea, in the same manner as he may enter into evidence for the purpose of disproving matter which has been pleaded affirmatively.

The facts alleged in a bill, where they are alleged positively, and not by way of pretence, are also constructive admissions, in favor of the defendant, of the facts so alleged, and, therefore, need not be proved by other evidence; for, whether they be true or not, the plaintiff, by introducing them into his bill, and making them part of the record, precludes himself from afterwards disputing their truth.

It is to be observed, that there is a great difference between actual and constructive admissions, with respect to the manner in 1 Gresley Eq. Ev. (Am. ed.) 9. As to implied admissions in answer, see post, 572, note.

The plaintiff may, however, as we have seen, examine at large into his whole case. Ante, p. 718.

3 Ante, p. 718.

which they are presented to the Court: the former are read to the Court to substantiate the case of the party reading them, in the same manner as the 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 the matters in issue between the parties are.

2. Actual admissions on the record are those which appear either in the bill or in the answer.

The plaintiff, of course, cannot read any part of his own bill as evidence in support of his case, unless where it is corroborated by the answer;1 as where the bill states a deed or a will, and the defendant, in his answer, admits the deed or will to have been properly executed, and to be to the tenor and effect set forth in the bill; in such case, the plaintiff, having read the admission from the answer, may read his bill, to show the extent of the admission made by the defendant. In strictness, however, this can hardly be called reading the bill on the part of the plaintiff, since the reading is only allowed because the defendant, by admitting the statement to be true as set forth in the bill, has, to that extent, made that portion of the bill a part of his answer.

In general, where a defendant refers to a document for greater certainty, he has a right to insist upon the document itself being read; but the plaintiff need not, on that ground, reply to the answer, but may set the cause down for hearing on bill and answer, and obtain an order to prove the document viva voce or affidavit at the hearing,3 provided it be such a document as, by the rules of the Court hereafter to be noticed, can be read in that

manner.

We have seen before, that, in certain cases, viz. where a bill has been taken pro confesso under the stat. 1 Will. IV. c. 36, it may be read in evidence against the defendant, against whom it has been so taken pro confesso.1

With respect to the right of a defendant to make use of the plaintiff's bill as an admission of the facts therein stated, it is to be

1 The answer of a party in Chancery is proper evidence against him, and so much of the bill as is necessary to explain the answer. McGowen v. Young, 2 Stewart, 276.

* Cox v. Allingham, Jac. 337.

'Fielder v. Cage, Prac. Reg. 219.

⚫ Ante, p. 454.