civil suits is, ordinarily, if not universally, excluded. But, in courts of equity, the parties, plaintiffs as well as defendants, may reciprocally require and use the testimony of each other upon a bill and cross-bill for the purpose. And in every case, the answer of the defendant to a bill filed against him upon any matter stated in the bill, and responsive to it, is evidence in his own favor.1 Nay, the doctrine of equity goes farther; for not only is such an answer proof in favor of the defendant, as to the matters of fact, of which the bill seeks a disclosure from him, but it is conclusive in his favor, unless it is overcome by the satisfactory testimony of two opposing witnesses, or of one witness, corroborated by other circumstances and facts, which give to it a greater weight than the answer, or which are equivalent in weight to a second witness.2 Or, to express the doctrine in another form, it is an invariable rule, in equity, that where the defendant, in express terms, negatives the allegations of the bill, and the evidence is only of one person, affirming, as a witness, what has been so negatived, the court will neither make a decree, nor send the case to be tried at law; but will simply dismiss the bill. The reason upon which the rule stands is this. The plaintiff calls upon the defendant to answer an allegation of fact, which he makes; and thereby he admits the answer to be evidence of that fact. If it is testimony, 1 In like manner, courts of equity admit the testimony of certain persons to facts, which, perhaps, they would not be, or might not be, competent to prove in a court of law. Thus, an accounting party may, in equity, discharge himself, by his own oath, of small sums under forty shillings, provided that they do not, in the whole, exceed the sum of one hundred pounds. 2 Fonbl. Eq. B. 6, ch. 1, § 1, and note (c); Remsen v. Remsen, 2 Johns. Ch. 501. See also Holstcomb v. Rivers, 1 Ch. Cas. 127, 128; Peyton v. Green, 1 Ch. 78 [146]; Anon., 1 Vern. 283; Marshfield v. Weston, 2 Vern. 176; s. c. 1 Eq. Abr. 11, pl. 14; Whicherly v. Whicherly, 1 Vern. 470; Morely v. Bonge, Mosel. 252. But he will not be allowed as plaintiff, to charge another person in the same way upon his own oath. Everard v. Warren, 2 Ch. Cas. 249; 2 Fonbl. Eq. B. 6, ch. 1, § 1; Marshfield v. Weston, 2 Vern. 176; s. c. 1 Eq. Abr. 11, pl. 14. I have said, that, perhaps the same evidence might not be allowed at law. Mr. Fonblanque (ubi supra) intimates that it would not be. But Lord Hardwicke, in Robinson v. Cumming (2 Atk. 410), suggested the contrary. [But a party cannot volunteer his own testimony in his own favor any more in equity than at law. Trowbridge v. Holden, 58 Me. 117.] 2 Pember v. Mathers, 1 Bro. Ch. 52; Walton v. Hobbs, 2 Atk. 19; Janson v. Rany, 2 Atk. 140; Arnot v. Biscoe, 1 Ves. 97; Cooth r. Jackson, 6 Ves. 40; East India Company v. Donald, 9 Ves. 275, 283; Pilling v. Armitage, 12 Ves. 78; Cooke v. Clayworth, 18 Ves. 12; Savage v Brocksopp, 18 Ves. 335; Clark's Executors v. Van Reimsdyk, Cranch, 160; Smith v. Brush, 1 Johns. Ch. 459, 462; Flagg v. Mann, 2 Sumner, 489; [Bent v. Smith, 22 N. J. (Eq.) 560]. 32 Fonbl. Eq. B. 6, ch. 2, § 3, note (9); Pember v. Mathers, 1 Bro. Ch. 52; Mortimer v. Orchard, 2 Ves. Jr. 243; Miles v. Miles, 32 N. H. 166. it is equal to the testimony of any other witness; and, as the plaintiff cannot prevail, unless the balance of proof is in his favor, he must either have two witnesses, or some circumstances in addition to a single witness, in order to turn the balance. We say a second witness, or circumstances; for, certainly, there may be circumstances entirely equivalent to the testimony of any single witness.1 § 1529. We are, however, carefully to distinguish between cases of this sort, where the answer contains positive allegations, as to facts, responsive to the bill, and cases where the answer, admitting or denying the facts in the bill, sets up other facts in defence, or avoidance. In the latter cases, the defendant's answer is no proof whatsoever, of the facts so stated; but they must be proved by independent testimony.2 § 1530. In the civil law (as we have seen), the parties to a suit might be interrogated upon articles propounded to them under the direction of the judge, as to the facts in controversy. “Ubicunque judicem æquitas moverit, æque oportere fieri interrogationem, dubium non est."3 And, by the rules of law, two witnesses were generally required for the establishment of all the material facts, not made out in writing, or by the solemn admission of the parties in court. "Ubi numerus testium non adjicitur, etiam duo sufficient. Pluralis enim elocutio duorum numero contenta est.1 Sanximus, ut unius testimonium nemo judicum in quacunque causâ facile patiatur admitti. Et nunc manifeste sancimus, ut unius omnino testis responsio non audiatur, etiamsi præclaræ Curiæ honore præfulgeat." These coincidences, between the civil 1 Clark's Executors v. Van Reimsdyk, 9 Cranch, 160; Gresley on Evidence, 4. 2 Gilbert's For. Roman. 51, 52; Hart v. Ten Eyck, 2 Johns. Ch. 88 to 90. 8 Ante, § 1486, 1487; Dig. Lib. 11, tit. 1, 1. 21; 1 Domat, B. 3, tit. 6, § 5, art. 4; id. § 6, art. 3, 4, 6, 9. although, undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions, to which only one person is privy; and, therefore, does not always demand the testimony of two, as the civil law universally requires. Unius 4 Dig. Lib. 22, tit. 5, 1. 12; 1 Domat, responsio testis omnino non audiatur.' B. 3, tit. 6, § 3, art. 13. Cod. Lib. 4, tit. 20, 1. 9, § 1; Pothier, Pand. Lib. 22, tit. 5, n. 19. Mr. Justice Blackstone, in his Commentaries (3d vol. 370), comments somewhat severely, and, perhaps, not very justly, on this rule of the civil law. "One witness,” says he, “(if credible) is sufficient evidence to a jury, of any single fact; To extricate itself out of which absurdity, the modern practice of the civil-law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to be plena probatio, they call the testimony of one, although never so clear and positive, semiplena probatio only, on which no sentence can be founded. To make up, therefore, law and equity jurisprudence, if they do not demonstrate a common origin of the doctrines on this subject, serve, at least, to show that they have a firm foundation in natural justice. The canon law has followed the rule of the civil law.1 § 1531. In the next place, the same general rule prevails in equity, as at law, that parol evidence is not admissible to contradict, qualify, extend, or vary written instruments; and that the interpretation of them must depend upon their own terms. But, in cases of accident, mistake, or fraud, courts of equity are constantly in the habit of admitting parol evidence, to qualify and correct, and even to defeat, the terms of written instruments.2 So they will allow parol evidence to rebut a presumption or an equity arising out of written instruments. But in these latter cases, they do not interfere with, or repel the proper construction of the instrument itself, but only the artificial rules of presumption or of equity, which they themselves have created, or applied to cases perfectly indeterminate in their nature, and admitting of either construction, according to the real intent of the party. § 1532. With these few remarks, we may dismiss these supplementary topics, as to peculiarities of defence and of evidence in courts of equity. And, here, these Commentaries are regularly brought to their close according to their original design. Let not, however, the ingenuous youth imagine, that he, also, may here close his own preparatory studies of equity jurisprudence, or content himself, for the ordinary purposes of practice, with the general survey, which has thus been presented to his view. What the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called the suppletory oath; and if his evidence happens to be in his own favor, this immediately converts the half-proof into a whole one. By this ingenious device, satisfying at once the forms of the Roman law, and acknowledging the superior reasonableness of the law of England, which permits one witness to be sufficient, where no more are to be had, and, to avoid all temptations of perjury, lays it down as an invariable rule, that 'nemo testis esse debet in propriâ causâ."" 1 Evans v. Evans, The Jurist, 1844, vol. 8, p. 1055. 2 2 Starkie, Evid. title Parol Evidence, p. 544 to 577 (2d Lond. edit.); 1 Phillips on Evid. ch. 10, § 1 to 3; id. Pt. 2, ch. 5, § 1, 2 (8th edit. 1838); 1 Fonbl. Eq. B. 1, ch. 3, § 11, and note (o); 2 Fonbl. Eq. B. 2, ch. 2, § 6, and note (e); id. B. 2, ch. 5, § 3, and note (1); unte, § 152 to 168, 179, 767 to 770; Croome v. Lediard, 2 Mylne & Keen, 260, 261. 3 Ibid. Mr. Phillips, in his Treatise on Evid. Pt. 2, ch. 10, § 3; id. Pt. 2, ch. 5, § 1, 2 (8th edit. 1838), has fully col lected the cases on this subject. See also on the same subject, 2 Starkie on Evid. p. 568 to 570 (2d London edit. 1833); 2 Fonbl. Eq. B. 2, ch. 5, § 3, note (l); ante, § 1201, 1202, 1203. has been here offered to his attention is designed only to open the paths for his future inquiries; to stimulate his diligence to wider, and deeper, and more comprehensive examinations; to awaken his ambition to the pursuit of the loftiest objects of his profession; and to impress him with a profound sense of the ample instruction, and glorious rewards which await his future enterprise and patient devotion in the study of the first of human sciences, — the law. He has, as yet, been conducted only to the vestibule of the magnificent temple, reared, by the genius and labors of many successive ages, to equity jurisprudence. He has seen the outlines and the proportions, the substructions, and the elevations, of this wonderful edifice. He has glanced at some of its more prominent parts, and observed the solid materials of which it is composed, as well as the exquisite skill with which it is fashioned and finished. He has been admitted to a hasty examination of its interior compartments and secret recesses. But the minute details, the subtle contrivances, and the various arrangements, which are adapted to the general exigencies and conveniences of a polished society, remain to invite his curiosity, and gratify his love of refined justice. The grandeur of the entire plan cannot be fully comprehended, but by the persevering researches of many years. The masterpieces of ancient and modern art still continue to be the study and admiration of all those who aspire to a kindred excellence; and new and beautiful lights are perpetually reflected from them, which have been unseen or unfelt before. Let the youthful jurist, who seeks to enlighten his own age, or to instruct posterity, be admonished, that it is by the same means, alone, that he can hope to reach the same end. Let it be his encouragement and consolation, that, by the same means, the same end can be reached. It is but for him to give his days and nights with a sincere and constant vigor, to the labors of the great masters of his own profession; and, although he may now be but a humble worshipper at the entrance of the porch, he may hereafter entitle himself to a high place in the ministrations at the altars of the sanctuary of justice. CHAPTER XLIV.1 ESTOPPELS IN EQUITY. [* § 1533. Equitable estoppels one of the means of promoting fair dealing and preventing fraud. § 1534. Acquiescence, which is explained by circumstances, creates no estoppel. § 1535. Acquiescence to any extent precludes the party from injunction. § 1536. Married woman estopped by acquiescence. § 1537. Acquiescence creates no estoppel where no one is misled. § 1538. Where the opposite party is misled, no excuse that it was done in good faith. § 1539. Joint-stock company bound by acquiescence. § 1539 a. Lapse of time and acquiescence will bar all relief against corporate acts ultra vires. So also in cases of actual fraud. § 1540. Settlements of account long acquiesced in, conclusive. § 1541. Difference between executory and executed interests, as to acquiescence. § 1542. Where one sees money paid, for his benefit, and does not object, he is concluded by the contract. § 1543. Fraudulent purpose and fraudulent result create estoppel. § 1544. Estoppels in regard to dedication of land to public use. § 1545. Married woman estopped by deed, not dissented from. § 1546. Estoppel created by acts as well as by words. § 1547. Joint-stock company bound by prospectus. § 1548. Courts of equity adopt the same construction as courts of law. § 1549. Further illustrations of the subject. § 1550. The subject applied to tenure of land. § 1551. Party objecting to securities, as fraudulent, must object at the earliest moment. § 1552. Remarkable case of delay in enforcing claim. § 1553. In case of extensive works, party must object at once. § 1553 a. Married woman or her heirs not estopped by her fraudulent deed. § 1553 b. One who claims the benefit of an estoppel in puis must show diligence and good faith on his part.] [* § 1533. THE subject of equitable estoppels, or estoppels in fact, although not formally discussed in any of the preceding chapters, and not named in terms, is nevertheless incidentally alluded to, in connection with the statute of limitations and laches,2 and has become one of great practical importance; and 1 The three following chapters are by Judge Redfield. 2 Ante, § 64 a, § 1520 to 1522. [In a recent work," Bigelow on Estoppel," it is said that "certain admissions are indisputable, and estoppel is the agency of the law by which evidence to controvert their truth is excluded." It follows from this, that the law of estoppel is a branch of the law of evidence. What effect shall a party's admissions, either in words or acts, have upon the matter in suit? This subject is peculiarly within the jurisdiction of equity, because courts of equity in a peculiar manner concern themselves with the fairness and good conscience of men in the conduct of their affairs. In this branch of the law, de |