Brown v. Bulkley. principle in Hobbs v. Norton, 1 Vern. 137 (1682), and in Alam v. Jourdan, Ibid. 161 (1688). In numerous cases, from that time to the present, instances will be found of attempts to evade or limit the operation of the principle. Thus it was held in Speed v. Martin, Comyns 587, that where there was a single witness against the answer, the matter would be sent to be tried at law, though the rule is now settled otherwise. Christ Church v. Widdrington, 2 Vern. 282; 2 Story's Eq. Jur., § 1528. It has also been settled that the principle extends this effect only to those parts of the answer which contain positive allegations as to facts within the defendant's knowledge, and which are responsive to the charges of the bill. It is also a recognized and familiar principle, and will be found adopted in many cases, that the credibility of the answer may be impeached by internal evidence, and may be within itself so inconsistent and contradictory as to deprive it of the character of a fair answer and of the effect to which it would otherwise be entitled. It is open to all the tests of truth to which other oral testimony may be subjected, save that the general character of the defendant for truth and veracity cannot be called in question. Where there is merely oath against oath, that of the defendant in his answer must prevail. Mortimer v. Orchard, 2 Vesey 242; Tamlyn's Ev. 5. The very fact, that no instance of an attempt even, much less a successful one, to introduce such evidence can be found in the reported cases in the English courts or in the elementary treatises, shows most conclusively that the evidence has been universally regarded as inadmissible and as a clear violation of the settled principle of the court. It is incredible, that amid the multitude of reported cases where charges of gross fraud and imposition have failed of being established by reason of their being denied by the defendant's answer, that this mode of overcoming its effect should not have suggested itself to the minds of counsel, and been urged upon the attention of the court, if it had been deemed in any degree an open question. That upon a point so Brown v. Bulkley. familiar and obvious there should be no adjudication, can be accounted for only upon the hypothesis that it has never been deemed a question. The fundamental principle of equity already alluded to, that the answer of the defendant cannot be overcome by the testimony of a single witness because it is only oath against oath, of necessity excludes the admission of extrinsic evidence to discredit the answer by impeaching the credibility of the defendant. Its admission is a subversion of the principle itself, and so the subject seems, whenever it has been alluded to, to have been regarded. In Clark's Executor v. Van Riemsdyk, 9 Cranch 160, Chief Justice Marshall says "the reason upon which the general rule requiring two witnesses, or one witness with circumstances, to outweigh an answer, is this. The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence. If it is testimony, it is equal to the testimony of any other witness; and as the plaintiff cannot prevail if the balance of proof be not in his favor, he must have circumstances in addition to his single witness in order to turn the balance." And in Field v. Holland, 6 Cranch 24 the same learned judge said, “the plaintiffs call upon the defendant for a discovery; they aver that the judgments were discharged, and expressly require him to answer this allegation. They cannot now be allowed to say that this answer is no testimony." In Clason v. Morris, 10 Johns. R. 542, Mr. Justice Thompson, in delivering the opinion of the court said, the respondents having thought fit to make the appellant a witness, they are bound by what he discloses, unless it is satisfactorily disproved. The answer is not to be discredited, or any presumption indulged against it, on account of its being the answer of a party interested. · In Woodcock v. Bennet, 1 Cowen 743, Mr. Justice Woodworth, delivering the opinion of the Court of Errors, after citing the language of the court in Clason v. Morris, adds, this rule applies to every case where the answer is within the discovery sought. In Chambers v. Warren, 13 Illinois 321, the plaintiff had Brown v. Bulkley. filed a bill of discovery in aid of a suit at law, and upon the trial, having read the defendant's answer in evidence, attempted to discredit it by impeaching the general reputation of the defendant for truth. The evidence was rejected upon the familiar principle, that a party cannot discredit his own witness by showing that he is unworthy of belief. It is conceded, that if a party in a suit at law calls the adverse party as a witness, or offers his answer to a bill of discovery as evidence before the jury, he cannot discredit the testimony by proof of general bad character because of the general principle, that a party cannot thus discredit his own. witness. It is denied, however, that this principle applies to the answer to a bill for discovery and relief, when used as evidence, on the ground that the defendant answers as a party, not as a witness; or if as a witness, the complainant is compelled to resort to his testimony. As pleading, the answer must stand, and the complainant is put to the proof of the facts in issue; but as evidence, like every other species of evidence, they are liable to be impeached and overthrown. Forsyth v. Clark, 3 Wend. 643. This is true, but the party in whose favor the witness is examined is never permitted, either at law or in equity, to impeach or overthrow his testimony by assailing his character for truth and veracity. So far as the answer operates as evidence, its averments are regarded as the testimony of a witness called by the plaintiff. This is the foundation of the principle. The plaintiff calls upon the defendant to answer an allegation of fact which he makes, and thereby admits the answer to be evidence of that fact. If testimony, it is equal to the testimony of any other witness. This is the light in which the subject is constantly presented in the books. 2 Story's Eq. Jur., § 1528; Price v. Lytton, 3 Russ. 206. By the established principles of equity, the answer of a defendant, either as a pleading or as evidence, is made to subserve certain purposes irrespective of the character of the defendant. Evidence, therefore, to impeach the defendant's Brown v. Bulkley. character, for the purpose of defeating those ends, must be irrelevant and inadmissible. Analogies will be found at law. Wherever a statute provides that the evidence of a party shall effect a designated purpose, or be prima facie evidence of a given fact, for the mere purpose of defence or protecting the party's rights, evidence impeaching the character or destroying the credibility of the witness is immaterial and inadmissible. Powles v. Dilley, 9 Gill 236; Price v. Mazange, 31 Alabama 708; Winne v. Nickerson, 1 Wisconsin 1. There are two cases in the American courts where the point now under consideration has been directly decided. In Butler v. Catling, 1 Root 310, a petition in chancery was filed for discovery and relief. The petitioner averred that he had recovered judgment against Butler, and had levied upon land conveyed by Butler to Catling, the defendant, prior to the judgment; that the deed was in reality a pledge for the payment of a debt of less amount than the value of the land, and that the knowledge of that fact lay in the private knowledge of the defendant. Prayer that upon paying the debt, the defendant should reconvey to Butler, and that the defendant should make discovery under oath. Butler having answered, denying the allegations of the petitioner, it was held that his testimony could not be discredited by impeaching his character. In Salmon v. Clagett, 3 Bland 165, where the point incidentally arose, the Chancellor, in the course of a very elaborate opinion touching the effect of an answer upon the continuance or dissolution of an injunction, said: "It is no objection to the validity and efficacy of an answer in this respect that the defendant is infamous or a negro, and as such an incompetent witness in ordinary cases. His answer must, notwithstanding, have full credit given to it; since the plaintiff, by calling him into court, has given him a competency to this extent for the purpose of defending himself and protecting his property." In Miller v. Tolleson, 1 Tarper's Ch. R. 145, it was heid, Brown v. Bulkley. by Chancellor Desaussure, that evidence to impeach the answer of the defendant, by showing directly that the defendant is not to be believed, is admissible. The case was affirmed in the Court of Appeals, and although this question does not seem to have been agitated there, the principle must be presumed to have received the sanction of that court. The bill in that case was filed by a creditor of Tolleson to set aside the sale and purchase of certain slaves, furniture, and land of said Tolleson, on the allegation that they were made to defraud his creditors. The answers generally denied the frauds. But Tolleson, who was the principal defendant, and upon whom the impu tation of fraud chiefly lay, "was proved by several respectable witnesses (I use the language of the Chancellor) not to he entitled to any credit." It was objected that it was not proper to receive any evidence to prove the want of credibility of the defendant, because the complainant, by putting him to his oath, gave him credit, which he was not at liberty to attack or deny. The Chancellor said, "this objection, by going too far, defeats itself. It would be absurd and mischievous to admit it, and it is not the rule of the court. The answer of the defendant, Tolleson, must therefore be put out of the case, because witnesses of indisputable credit have attested to his entire want of credibility. There is a plain rule on this subject, which is, that the defendant's answer, if he is not proved to be utterly nworthy of credit, shall have so much weight attached to it that it shall be considered as establishing the truth of what it states in answer to the allegations of the bill, unless contradicted by two witnesses, or by one witness and strong circumstances." This, it must be admitted, is direct authority in support of the admissibility of the evidence; and the learning and ability of the court by whom the decision was made entitle it to the most respectful consideration. But the case has some features which detract from the weight of the decision. It is obvious that the point is assumed as settled. Not an authority is cited; no reason is |