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, 3. Defendant sometimes actor and to file interrogatories, &c. PAGE 7 8 11 16 75 et. seq. 5. How far a party charged by his own statements may discharge See also Addenda. 6. An examination is the same as an answer as to this point, 9. Oath of an accounting party to be taken for sums under $20, 11. Accounts sometimes allowed prima facie evidence for a party 13. Tradesmen's books when proof of goods furnished, ADJOURNMENT. Right of a Master to adjourn a reference, ADMISSION. To be entered in the Master's minutes, 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 5. Jurisdiction given first upon the ground of inhabitation at the 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 10. Williamson v. Parisien,-Observations upon, 11. Woman resident in the state and exhibiting a bill, deemed an 12. Adultery must be proved as charged in the Bill, 14. But the decree must not rest alone upon it, ALIMONY, 1. Wife entitled to upon a Bill of divorce, 2. Whether filed by husband or wife, PAGE 172 172, 3 173 174 ib. ib. 3. Course of proceeding under an order of reference to fix the 5. Separation the foundation of the claim, 4. Costs of suit to be allowed also, 168 6. Alimony given from citation served or returned in Ecclesias- 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 169 ib. ib. 2. Master to enquire as to the party having read the answer, &c. 7. Order must be entered to refer them unless notice of submis- 8. Masters report to be procured in 14 days where injunction or 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- 13. And upon a reference of a second as well as a first answer, 15. A statement co-extensive with the inquiry, 260 16. But every thing incidental to a fact may be enquired to under 17. Statement by way of charge warrants an interrogatory, 20. Master has a right to judge of the materiality of the questions, 258 259 ib. ib, 261 ib. 261 262 ib. 22. Plaintiff entitled to a discovery to enable him to obtain a de- 23. He may require an answer as to what he can prove, 24. A charge must be answered in substance not making a negative 26. Particular charges must be answered particularly, 29. Other facts must be answered as to information and belief. 31. Question how far a defendant may by answer object to answer, 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- PAGE 262, S ib. ib. 264 265 ib. 266 267 ib. 268 ib. ib. 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- 37. Lord Redesdale's doctrines, 39. Distinction taken by counsel between an answer to title, and 46. As the position of a demurrer admitting the facts, 47. Utility of the rule as now settled in England, that such sin- 53. Treated generally as confined to a negation of person or char- 54. Late cases have admitted it, denying merely any material fact, 58. Authorities to admit a double plea, if pleaded at the same time, 60. 2. Facts tending to make out the title itself, 3. A partial discovery on the particular matter, 4. Tendency to criminate, or subjecting to forfeiture, 61. Denial of partnership in England may not be taken by answer, ib. 292 293 ib. 295 296 ib. 297 298 must answer, ib. |