Of the form of a Replication. The replication of A. B. complainant to the answer of C. D. and E. F. defendants: "This repliant saving and reserving to himself all and all manner of advantage of exception which may be had and taken to the manifold errors, uncertainties and insufficiencies of the answer of the said defendants, for replication thereunto saith, that he doth and will aver, maintain, and prove his said bill to be true, certain and sufficient in the law to be answered unto by the said defendants, and that the answer is very uncertain, evasive and insufficient in the law to be replied unto by the repliant without that, that any other matter or thing in the said answer contained, material or effectual in the law to be replied unto, and herein, and hereby, well and sufficiently replied unto, confessed or avoided, traversed or denied, is true; all which matters and things this repliant is ready to aver, maintain and prove, as this honorable court shall direct, and humbly prays, as in and by his said bill he hath already prayed." 3 The form of a Replication. issue on filing a Every cause is deemed at issue on filing the replica- . Cause at tion, (d) and this rule at once cuts off a long train of spe- replication. cial pleadings, which yet may have place in the English courts, but which are there seldom resorted to, and which answer no other purpose than to retard the progress of the cause, and augment the bill of costs. (d) Rule 31. OF THE EXAMINATION OF EVIDENCE. Special Contents. I. Before whom, and how taken. II. Form of interrogatories in equity. III. How depositions in equity are to be taken before an examiner. IV. Time of furnishing copies of the interrogatories. V. Rule for the plaintiff to produce witnesses. VI. Præcipe to the clerk in court. VII. Notice to the opposite solicitor, of a day being given to produce witnesses. VIII. How interrogatories are to be administered to witnesses. X. When a witness dies before the examination is signed. rogatories. XII. Depositions to be read by the examiner. XIII. Where a witness refuses to attend to be examined. XIV. Form of a subpoena to testify before the examiner. XV. Notice to the witness. XVI. Examiner's certificate of the interrogatories being filed, &c. &c. XVII. A witness once examined before an examiner. XVIII. No examination of a witness, after the rule for publication is out, XIX. A witness misbehaving. XX. The court may order the further examination of a witness. XXI. Notice to the opposite solicitor of the time and place of the examination, &c. XXII. Form of the notice. XXIII. Showing a witness dispensed with. XXIV. Form of depositions. XXV. Of passing publication. XXVI. Of examining the credit or competency of witnesses. XXVII. Notice of filing the articles. XXVIII. Form of the articles. XXIX. Of the examination of witnesses De Bene Esse. XXX. Of the examination of witnesses viva voce at the hear 1st. Of the examination of evidence, &c. WE are now come to that stage of a suit, in which it becomes proper to treat of the evidence which ought to be adduced in the cause, that is, such as is admissible in a court of equity, and at the same time sufficient to establish the charges in the bill, and thereby found a decree. Before whom, and how taken. Of passing publication. The sufficiency and responsibility of witnesses. The examination of witnesses De Bene Esse, and Viva voce at the trial of the cause. By the replication, the complainant takes upon himself, in effect, to prove by the testimony of the witnesses, every fact which is alleged in the bill, which is material for the support of his case, and which is not admitted by the answer of the defendant; and, it is a general rule, (not however without exceptions,) that the complainant must prove a fact denied by the answer, by the testimony of more than one witness, for if there be but the oath of a single witness to contradict an allegation which the defendant has made on oath, there is but oath against oath, and of course no foundation for a decree; nor can the scale ever be turned against the defendant in such a case, by an examination as to the credibility of the defendant, for whatever his credit may be, the complainant has chosen to require his oath, and must be content to abide by it, unless he can establish its falsity by preponderating testimony. It is presumed, however, that this rule is not so inflexible, but that it will yield to those rules which are the result of experience, and a knowledge of human nature, which is, that violent presump tion is equal to full proof, and, indeed, if it be admitted, that between the oath of a single witness, and the uncontradictory oath of another witness, the court must stand indifferent, there is no reason why the same presumptive testimony, which would be given in a court of law, should not be decisive in a court of equity. In criminal courts, there is a general rule of the same nature, that there cannot be a conviction of perjury on the oath of a single witness, because there would be only oath against oath; yet, convictions of perjury have taken place, where the oath of a witness has been corroborated by the proof of circumstances, which gave rise to that violent presumption (which the law considers as conclusive) of the defendant's guilt. It may, however, be questioned, whether admitting presumptive evidence to weigh against the oath of a defendant, ought to be such an exception to the general rule that there cannot be a decree against the answer of a defendant, unless there be more than the oath of one witness in contradiction to the answer; for, if in a court of equity, as in a court of law, violent presumption is to be accepted as full proof-then the proof of circumstances, from which this presumption is to arise by more than one witness, is a contradiction of the defendant's answer, by the oath of more than one witness. Where the facts charged in the bill are fully denied by the answer, there can be no decree against the answer, on the evidence of a single witness only, without corroborating circumstances to supply the place of a second witness.(a)* In all courts, which proceed according to the course (a) Smith v. Brush & others, 1 Johns. Chan. Rep. 459. See the ease of Hart v. Ten Eyck et al. as to the effect of an answer: Appendis post. of the civil law, the examination of witnesses is taken in writing; it is probable this used to be done in open court; but these courts have found it necessary to rid themselves of so burthensome a duty, and, at present, the examination of witnesses in the court of Chancery is taken before officers appointed for that purpose. There are certain facts, which from their nature may seem to admit of little controversy, that may be proved by witnesses examined viva voce, in open court, at the hearing of a cause; such as the execution of a deed, where a defendant neither admits nor denies the execution in his answer, but leaves the party to make proof thereof, (to use the technical phrase,) as he shall be advised. For it is presumed, that if the execution of the deed was to be controverted in the pleadings, as if one party was to allege that a deed was genuine, and the other that it was forged, the court would not permit this question to be examined at the hearing. This kind of examination, never can take place, but by the special permission of the court, obtained in due forin. Of the examination of witnesses. Before whom, and how taken. 1. Before whom, and how The cause being at issue, by the filing of the replication, the parties proceed to maintain the allegations taken.' contained in their respective pleadings, by the examination of witnesses. This examination, is either before an examiner, or before special commissioners, nominated by the parties, and authorized by a commission of dedimus potestatem, issuing out of the court, to take the deposition of the witnesses. Though there seems to be no rule in this state to |