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allegation. They could not then be allowed to say the answer was no testimony.

The Author has examined minutely the following cases, which are all he has found cited upon this general question, and in every one the decision has proceeded upon a distinct allegation in the Bill of a distinct substantive fact, and a requisition general or special to answer it.-Pember v. Mathers, 1 Br. C. R. 52. Walter v. Hobbs, 2 Atk. 19. Cooke v. Clayworth, 18 Vesey, 12. Hine v. Dodd, 2 Atk. 275. Only v. Walker, 3 Atk. 407. Le Neve v. Le Neve, 1 Vesey, Sen. 66. Arnot v. Biscoe, 1 Vesey Sen. 96. Cooke v. Jackson, 6 Vesey, 39. East India Company v. Donald, 9 Vesey, 275. Pillings v. Armitage, 12 Vesey, 78. Wakelin v. Walthal, 2 Chy. Ca. 8. Smith v. Brush, 1 John. C. R. 461. In each of these cases, the question has been upon the clear allegation of a substantive fact in the bill, met in the answer by an express and unequivocal denial.

But there is no trace of a decision dictum, nor even an allegation of Counsel, that a general requisition for a person in the situation of a trustee, to set forth his accounts, the disposition of the fund come to his hands, or his disbursements, makes a statement of his payments evidence. - Indeed upon principle, this is not discovery in the light in which the rule in question has ever been applied. A matter of account is matter of relief. The form of the bill is a prayer for relief by setting forth a true and full account of the fund come to his hands and his disposition of it. Suppose the complainant requires him merely to set out an account of his receipts, or what composed the items of the estate, when he entered upon the execution of his trust. Can the defendant say, that this entitles him to make his account of payments evidence? If he cannot, then a most trivial variation of form, and omission of what can never be essential in a bill evades the rule. To be operative, indeed to be of any influence whatever, it must go that length; but to carry it that length would it is apprehended be a novelty in the doctrines of the court. It in truth amounts to this, that by the plaintiff requiring a statement as to one fact, the defendant's statements to every other fact are made testimony for him.

In cases against an executor who has filed an inventory, the rule in question, if it has been carried to the extent supposed, may be avoided by merely praying, that the defendant be decreed to account, as in Misenor v. Burfort, Coxes cases. Then the decree would be merely that the Master take an account of all sums come to his hands, &c. and make him all just allowances, and before the Master he might be charged from the inventory.

The cases of Boardman v. Jackson, 2 Ball and Beatty, and Robinson v. Scotney, 19 Vesey, 582, are decisive upon this subject as to the rule in En-gland. And those of Beckwith v. Butler, 1 Washington, 224, and Paynes v. Coles, 1 Mumford, 39, appear to declare the same rule in Virginia.

In the former the bill was filed against an executor, and prayed distribution of the personal estate.

The defendant stated in his answer, that there was little estate except a debt due by bond from T. which his Father gave him in his life time, as a compensation for his having consented to the sale of an English estate, which would have descended to him. The court said it would be monstrous indeed, if an executor when called upon to account, was permitted to swear himself into part of the testator's estate.

INDEX.

ACCOUNT.

Reference to state an,

1. First proceeding varies according to situation of the cause,
2. Succession of proceedings upon the reference,

3. Defendant sometimes actor and to file interrogatories, &c.
4. General rules upon accounting,

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7

8

11

16

75 et. seq.

5. How far a party charged by his own statements may discharge
himself by same,

See also Addenda.

6. An examination is the same as an answer as to this point,
7. Books of account, &c. used to charge are good in discharge,
8. See Vouchers.

9. Oath of an accounting party to be taken for sums under $20,
10. Books of partners are evidence between them,

11. Accounts sometimes allowed prima facie evidence for a party
12. In a case of lost vouchers, oath of party permitted under cir-
cumstances,

13. Tradesmen's books when proof of goods furnished,
See Rests, Interest, Passing accounts of guardians, &c.

ADJOURNMENT.

Right of a Master to adjourn a reference,
Adjournment de die in diem, English rule,

ADMISSION.

To be entered in the Master's minutes,
Of Solicitor, &c. binding on Client,

ADULTERY.

1. Statute directing a reference upon Bill pro confesso,

2. Order thereupon,"

3. Not to be entered of course,

4. Course of proceeding before the Master,

75, &c.

77

81

82

11

ib.

82
83

5. Jurisdiction given first upon the ground of inhabitation at the
commission of the act.

6. What constitutes inhabiting under the act,

7. Must be animus manendi,

8. Not the same as domiciliated.

5

ib.

39

ib.

169

170

ib.

ib.

ib.

ib.

171

ib.

9. Second clause of statute upon solemnization of marriage in
the state, and residence of the injured party at commission
and filing the Bill,

10. Williamson v. Parisien,-Observations upon,

11. Woman resident in the state and exhibiting a bill, deemed an
inhabitant of the state, though her husband reside elsewhere,

12. Adultery must be proved as charged in the Bill,
13. Confessions may be received as evidence,

14. But the decree must not rest alone upon it,
Allowance upon Divorce. See Divorce.

ALIMONY,

1. Wife entitled to upon a Bill of divorce,

2. Whether filed by husband or wife,

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172

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172, 3

173

174

ib.

ib.

3. Course of proceeding under an order of reference to fix the
proper sum,

5. Separation the foundation of the claim,

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4. Costs of suit to be allowed also,

168

6. Alimony given from citation served or returned in Ecclesias-
tical courts,

ib.

7. Return of subpoena analogous rule,

ib.

8. Assigned usually at a monthly rate,

9. General rule to allow one third of the yearly value of the
real estate,

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169

ib.

ib.

2. Master to enquire as to the party having read the answer, &c.
3. Feme covert answers separately by guardian,

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7. Order must be entered to refer them unless notice of submis-

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8. Masters report to be procured in 14 days where injunction or
ne exeat has issued,

ib.

9. Enlargement may be procured on certificate,

ib.

10. Course of proceeding upon this reference,

254

11. No draft issues-Exceptions taken without objections,

ib.

Reason of this practice,

254. 8

12, Report must specify the exceptions or parts of exceptions al-

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13. And upon a reference of a second as well as a first answer,
14. Foundation necessary in a bill for an exception,

15. A statement co-extensive with the inquiry,

260

16. But every thing incidental to a fact may be enquired to under
the charge of that fact,

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17. Statement by way of charge warrants an interrogatory,
18. General interrogatory sufficient to call for an answer,
19. If the bill does not contain a proper allegation, yet if defendant
has answered to the matter, he must answer fully to the
whole exception,

20. Master has a right to judge of the materiality of the questions,
21. Test of materiality, aid in procuring the relief,

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258

259

ib.

ib,

261

ib.

261

262

ib.

22. Plaintiff entitled to a discovery to enable him to obtain a de-
cree; to ascertain facts incapable of, or in aid of proof,

23. He may require an answer as to what he can prove,

24. A charge must be answered in substance not making a negative
pregnant,

26. Particular charges must be answered particularly,
27. Answer should not set out deeds in hæc verba,
28. Fact charged as in defendant's knowledge must be answered
positively, not to remembrance and belief,

29. Other facts must be answered as to information and belief.
30. On a Bill for an account, defendant must set forth the best ac-
count in his power,

31. Question how far a defendant may by answer object to answer,
32. Stated in a more extended shape,

33. Relates to a defence against discovery,

34. Every defence to relief may be taken by answer,

65. Demurrer or plea in general the appropriate remedy,

36. Statement of the early cases upon this point prior to publica-
tion of Lord Redesdale's work,

PAGE

262, S
263

ib.

ib.

264

265

ib.

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266

267

ib.

268

ib.

ib.

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273

40. Lord Kenyon, Lord Loughborough,

275

41. Cases before Lord Eldon,

276. 279

42. Subsequent cases at the Rolls and before the Vice Chancel-

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37. Lord Redesdale's doctrines,
38. Cases before Lord Thurlow,

39. Distinction taken by counsel between an answer to title, and
to the account consequential,

46. As the position of a demurrer admitting the facts,

47. Utility of the rule as now settled in England, that such sin-
gle matter of defence must be taken by plea or demurrer,
48. Question connected with that of admissibility of a negative

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53. Treated generally as confined to a negation of person or char-
acter,

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54. Late cases have admitted it, denying merely any material fact,
56. Double pleading said not to be allowed,

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58. Authorities to admit a double plea, if pleaded at the same time,
59. Exceptions to the rule that the defence cannot be taken by an-

60. 2. Facts tending to make out the title itself,

3. A partial discovery on the particular matter,
Remarks upon this point,

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4. Tendency to criminate, or subjecting to forfeiture,
5. Purchaser for valuable consideration,

61. Denial of partnership in England may not be taken by answer,
62. If doubtful whether the defendant has actually the defence, he

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ib.

292

293

ib.

295

296

ib.

297

298

must answer,

ib.

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