I. NATURE of.

What so termed in the Ecclesiastical Courts. (See Thorold v. Thorold. Phill. R. i. p. 1, in Note.)

II. ADMISSION OF.

1. In Interest Causes.

An allegation pleading relationship, and deducing a pedigree from the common ancestor, but not supported by any exhibits, or times, or places, of the several marriages, but only pleading cohabitation, owning, and general reputation of the respective persons as husbands and wives, and of their children as legitimate, admitted to proof.-(Shand v. Gardiner. Lee's R. i. p. 529.)

2. Where Objection to, is grounded on point of Law.

Allegation propounding two wills—the first of which was regularly executed and attested, and probate of which had been granted to

(c) Where offered to explain latent ambi

2. Reformation of

(a) On account of irrelevant Matter propounded

(b) By reason of its generality.

(c) Presumptions in respect of entertained by the Court.

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the executor-and the latter an unexecuted will suggested to be in the deceased's handwriting, of which the testator had appointed the same person executor, was admitted to proof; though it was insisted that the latter will, containing both real and personal estate, and being unexecuted, and having been written two months before the deceased's death, could not, by law, revoke the former executed uncancelled will; and that the allegation pleading it was consequently irrelevant, upon the ground that the sale objection arose from a question of law, which could not be fully debated on the admission of an allegation.-(White v. White. Lee's R. ii. p. 20.)

An allegation propounding an unfinished testamentary paper, admitted to proof, upon the ground that the facts ought to appear before the Court, to found any observations which could arise in point of law. (Reeves v. Glover and others. Lee's R. ii. p 270.)

B

An allegation propounding a testamentary schedule, admitted.-(Cunningham v. Ross. Lee's R. ii. p. 272.)

3. Where Objection to was grounded on Non-payment of Costs.

Admission of an allegation was opposed, on the ground that the party giving it in hạd been condemned in costs, which remained unpaid; but as no monition to enforce the payment had been served upon him, the objection was not sustained. (Smith v. Corry. Lee's R. i. p. 432.)

4. In Panam.

Where the cause had stood on admission of an allegation for some days, and the adverse Proctor had neglected to attend counsel, and would not appear himself in Court, but sent his clerk to get it put off,-the allegation was admitted in pænam against him. (Taylor v. Taylor. Lee's R. ii. p. 85.)

5. Where Court will not stay.

The Court will not, when a competent party is opposing a will, stay the admission of the executor's allegation propounding such will, till the appointment of a committee of a lunatic next of kin be confirmed; more especially, such committee being already a party to the suit, as curator of the other next of kin.-(Tyrrell v. Jenner, and v. T. J. and Mary Spitty, by their Guardian. Hagg. R. ii. p. 72.)

6. Where Allegation propounded a Codicil found after grant of Probate.

A. dies, leaving by will his wife B. sole executrix, and universal legatee,—allegation propounding a codicil to A.'s will, found subsequent to B.'s death, on behalf of a legatee, (B.'s executor refusing to take administration of A.'s unadministered effects with his will, and this codicil annexed,) admitted to proof.-(Dickinson v. White. Add. R. i. p. 490.)

7. By Court of Appeal.

The limitations which the Court of Appeal prescribes to itself, do not apply to an appeal from a Country Court, on account of the irregularities, which occur in the proceedings of the Country Courts.-(By Sir John Nicholl, in Addams v. Kneebone. Phill. R. ii. p. 124.)

An allegation in a testamentary cause rejected by the Court below, admitted in the Court of Appeal.—(Addams v. Kneebone. Phill. R. ii. p. 124.)

III. REJECTION OF.

1. On Account of pleading Matter irrelevant.

An allegation in a suit touching the validity of a marriage, pleading irrelevant matter, rejected.-(Bird v. Bell, Lee's R. i. p. 531.)

A widow propounds her husband's will, as executrix,-an allegation, pleading the invalidity of her marriage with the testator, rejected. (Moore v. Hacket and others. Lee's R. ii. p. 86.)

2. On account of pleading Matter before pleaded.

Articles of an allegation, which had been in substance pleaded before, rejected; but letters allowed to be pleaded in supply of proof. (Braddyll v. Jehen. Lee's R. i. p. 568.)

3. After" Act to Propound all Acts.”

The whole substantive case of a party should be at once brought before the Court; but where it is clearly shown that the facts could not have been sooner pleaded, additional articles may be given in.-(Moorsom v. Moorsom. Hagg. R. iii. p. 97.).

An allegation of the wife not responsive but pleading more minutely, but to the same effect as in the former plea, rejected in toto; the facts not being noviter perventa.—(Moorsom v. Moorsom. Hagg. R. iii. p. 96.)

4. After Publication.

Allegation in tithe cause rejected,—being offered after the depositions were seen, and being also the same in substance as an allegation rejected, and irrelevant.—Herbert v. Helyar. Lee's R. i. p. 452.)

5. For insufficiency to sustain Matter propounded.

An allegation propounding an imperfect paper rejected, as insufficient, if true, to sustain the paper propounded. (Montefiore v. Montefiore and others. Add. R. ii. p. 354.)

IV.-EXCEPtive.

1. How the Court will regard.

Exceptive allegations are always received with great caution and jealousy.-(By Sir John Nicholl in Verelst v. Verelst. Phill. R. ii. p. 146.)

Exceptive allegations are always to be watched with jealousy; and more so when offered by wife, because she has not the ordinary check of costs. The Court exercises a greater discretion over exceptive allegations after publication in a cause; because it can then see more of the general character of the case, and what facts bear upon the general issue of the cause.-(By Sir John Nicholl, in Halford v. Halford. Phill. R. iii. p. 98.)

The Court at all times admits exceptive allegations with caution; and they are seldom introduced with effect.-(By Sir John Nicholl, in Salmon and others v. Cromwell. Phill. R. iii. p. 220.)

Where the main fact depends on the evidence of some particular witness, and it is necessary to weigh the credit of that witness nicely, the Court is less averse to admitting

an exceptive allegation. (By Sir John Nicholl, in Salmon and others v. Cromwell. Phill. R. iii. p. 220.)

An exceptive allegation before publication, stands on the same footing with any other facts in the case. (By Sir John Nicholl, in Chapman v. Whitby and Parson. Phill. R. iii. p. 372.)

2. Requisites of.

Exceptive allegations must shew that witnesses have wilfully sworn falsely.(Verelst v. Verelst. Phill. R. ii. p. 147.)

An allegation exceptive to the testimony of a witness, to be admissible, must plead matter not pleadable before publication; and it must be such as, if proved, will materially discredit the witness. It must be pleaded, too, with all possible specification as to times, places, persons, and so on.-(Atkinson v. Atkinson. Add. R. ii. p. 484.)

An exceptive allegation lies to the testimony of a witness not examined in the principal cause, but examined only in support of an exception to the testimony of a witness in the principal cause. And, if admissible generally, [i. e. if pleading (and within time) facts of a nature materially to discredit the witness excepted to, and if duly specifying times, places, persons, and so on,] such an exceptive allegation is clearly entitled to go to proof.-(Ball v. Ball. Add. R. iii. p. 9.)

Exceptive allegations, after publication, are "stricti juris;" and their object being the credit of the witness; and not the proof of the matters in issue in the principal cause: 1st. Facts, which might have been pleaded in contradiction to the pleas before publication, cannot be pleaded in contradiction to a witness: 2ndly, there must be a contradiction to the depositions clear and capable of proof, and showing that the witness has deposed falsely and corruptly: 3rdly, the matter must arise out of the evidence (not out of the general character) of the witness. —Allegation rejected.—(Burgoyne v. Free. Hagg. R. ii. p. 480.)

4. When stricti juris.

When pleaded after publication.—(Burgoyne v. Free. Hagg. R. ii. p. 480.)

3. Where suspended.

(a) Generally.

In order to allow witness to be examined on the exceptive plea, if thought necessary by the Judge.-(Salmon and others v. Cromwell. Phill. R. iii. p. 220.)

The admission of an allegation exceptive to the general character of a witness, suspended till the final hearing of the cause. (Chapman v. Whitby and Parson. Phill. R. iii. p. 370.)

(b) How long.

The admission of an exceptive allegation may be suspended till the hearing of the principal cause; when the Court will permit

An exceptive allegation seldom produces evidence on which the Court can rely for the determination of the cause. (Such evidence being more to be collected from the substance of the depositions than from any thing usually brought forward in such a pleading.) Circumstances material to the elucidation of the cause, seldom come out on a plea of this description.-(Verelst v. Verelst. Phill. R. ii. p. 151.)

6. Facts stated in, how examined into.

Any fact must not only be pleaded more restrictively in an exceptive allegation than before publication; but it must also be more strictly examined into.-(Wilkinson v. Gordon. Add. R. ii. p. 171.)

V.-RESPONSIVE.

1. Admission of.

(a) Discretion which Court exercises in respect of.

In considering the admissibility of allegations, the Court exercises a certain degree of discretion upon a view of the whole case; it looks whether the facts pleaded bear remotely, whether they bear directly upon the question, or whether, if proved, they can make no impression. In doing this, the Court exercises a discretion advantageous and convenient for the parties themselves.(By Sir John Nicholl, in Evans v. Knight and Moore. Phill. R. iii. p. 418.)

(b) Where the Matter propounded is merely explanatory.

Two explanatory articles admitted.—(Roper v. Roper. Phill. R. iii. p. 97.)

(c) Where offered to explain latent ambiguities.

An ellegation, on the part of the executors, responsive to a libel in a suit of subtraction of legacy, and pleading circumstances dehors the will, is admissible to explain a latent ambiguity as to the object of the bequest.— (Capel v. Robarts and Neeld. Hagg. R. iii. p. 156.)

(d) Up to what time.

The admission of an allegation responsive to an exceptive allegation reserved to the final hearing; the Court being of opinion that part, if otherwise admissible, was not material, and that the remainder probably

would not, in the event, be of sufficient importance to delay the cause.-(Mynn v. Robinson. Hagg. R. ii. p. 175.)

2. Reformation of.

(a) On account of irrelevant Matter propounded.

The facts propounded being in part irrelevant to the real issue of the cause, the Court ordered them to be reformed.-(Evans v. Knight and Moore. Phill. R. iii. p. 413.) (b) By reason of its generality.

An article in an allegation in an interest cause directed to be reformed, on account of its generality in specifying place and time, where facts peculiarly within the knowledge of the party pleading them happened.(Alfray v. Alfray. Lee's R. ii. p. 547.)

Allegation ordered to be reformed, for the purpose of allowing a party to plead a power, under which the will of a married woman had been made.-(Temple v. Walker. Phill. R. iii. p. 394.)

(c) Presumptions in respect of entertained by the Court.

In assuming an allegation to be true, for the purpose of determining its admissibility, the Court only assumes to be true those facts pleaded in it, capable of satisfactory proof; and not by any means all the several averments, which may stand in the allegation; which, in effect, are mere inferences deduced, somehow or other, from those facts. -(Montefiore v. Montefiore. Add. R. ii. p. 355.)

I.-NATURE OF (MISTAKEN.)

When considered as Responsive Allegations.

It is not uncommon in the Country Courts to consider answers as a responsive allegation, and to examine witnesses upon them. (By Sir John Nicholl, in Burnell v. Jenkins. Phill. R. ii. p. 394.)

Great confusion of ecclesiastical proceedings in the country arises from solicitors acting as proctors, and knowing nothing of the ecclesiastical law: when they come before the superior Court, they must be set right, and not allowed to proceed.

The error in the Court below arises from a perfect confusion between the answers and the plea. They have mistaken the answers for the plea. (By Sir John Nicholl, in Morgan v. Hopkins. Phill. R. ii. p. 584.)

VI.-EXAMINATION OF WITNESSES UPON. (Burnell v. Jenkins. Phill. R. ii. p. 394.) VII.-PARTICULARITY OF IN TITHE CASES.

In answer to a libel in a suit for subtraction of tithes, it is not sufficient to state deductions generally; they must be specifically set forth.-(Leith v. Cliff. Phill. R. ii. p. 389.)

In many cases, especially in tithe cases, the facts are exclusively in the defendant's knowledge, there can be no other mode of proof; if the defendant has not answered to the quantity and the value, the answers are defective, and he cannot screen himself under the suggestion of a modus. This modus is no excuse for not setting out the quantity and the value. (By Sir J. Nicholl, in Morgan v. Hopkins. Phill. R. ii. p. 584.)

VIII.-OBJECTIONS TO.

To what period of Cause, and after what default.

Where a certificate to a decree for answers has been discontinued, it is still competent to the Proctor, having discontinued it, to object to the answers. -(Raymond v. Von Watteville. Lee's R. ii. p. 495.)

IX.-WHERE THEY CANNOT BE INSISTED UPON, ET CONTRA-AND WHETHER ON OATH OR NOT ON OATH.

Where the answer would subject the party making it to a prosecution for felony. (Robins v. Sir William Wolseley. Lee's R. i. p. 620.)

Where an application to grant probate on admission of the adverse party in acts of Court, with a view to save the answers, was made, the Court refused the application, and decreed that answers on oath could not be dispensed with.-(Lyon v. Furness. Phill. R. iii. p. 316.)

In criminal suits the defendant's answers upon oath are not to be required, even to those heads or positions which are not in themselves criminatory.-(Schultes v. Hodgson. Add. R. i. p. 105.)

I am clear, that in a criminal suit, under the stat. of Car. 2. (13. Car. 2, c. 12, s. 4,) the answers, on oath, of the defendant are not to be required. An issue, negative or affirmative, is the only answer, and the calling for any other, certainly is an appealable grievance. The statute provides that no Ecclesiastical Judge shall tender any person whatsoever any oath, whereby such person shall be charged, to purge him or herself of any criminal matter or thing: it not simply justifies the party to whom the oath in question is tendered, in refusing to take it; but it prohibits the very tender of it, by any person exercising ecclesiastical jurisdiction. It has been argued, that this statute only goes to protect parties from being forced to answer criminal charges ; and that it contains nothing which prevents the usual oath for answers from being ad

cases.

ministered to defendants in criminal suits, so as to oblige them to answer those articles objected to them, which are not criminal charges. To this interpretation of the statute I can by no means assent; it being neither consonant to practice, nor to those general principles, which govern, in this country, the administration of criminal justice. And first, as to the practice, the contrary has been laid down by this Court in such repeated instances, that it would be mere idle pedantry to refer to particular It may be, indeed, the modified practice in civil suits, founded on criminal imputations; it is clearly not the practice at all, in suits directly criminal. For instance, if adultry be proceeded against by lihel, quoad petendum divortium, the defendant's answers may be (though seldom are), taken to such parts of the libel as involve no direct, or implied, charge of adultery: but if adultery be prosecuted by articles, quoad panam legalem, the defendant's answers may not be taken, not even (that is) to such parts of the articles as involve no charge of adultery, either direct or implied. The same holds, mutatis mutandis, in proceedings for incest, and in other cases. It is the not attending to this settled distinction which may have given rise to the erroneous notion, that answers may be called for in criminal suits. Nor, secondly, do I conceive that calling for answers in suits of this description, is more at variance with the correct practice, than it is objectionable on sound principle. On principle, parties are neither compellable to render themselves, nor to furnish their accusers means of rendering them, obnoxious to censure, or punishment; they are neither to be forced to implicate, nor to do any thing which has a tendency to implicate, themselves. The guilt of parties under prosecution is to be sifted out by the depositions of witnesses, and other due proofs and evictions," from the number of which the parties' own answers are excluded as well by natural justice, as, I conceive, under the statute of Car. 2, by positive law. In criminal suits, the maxim is "actore non probante res absolvitur;" and it is obvious how much of the burthen of proof may be shifted from the "actor"-the promoventby the defendant's answers, even to such heads or positions objected to him as are not in themselves, and directly, criminatory. Admissions from the defendant of those parts of the articles, which are not of this kind, may be the means (perhaps the only means) of helping the promovent to the proof of those parts of them which are: add to this, that the popular, at least, though not the just and legal, inference deducible from the defendant's answering articles in part, and declining to answer the criminal charges, is an admission of his guilt. And it is contrary to natural justice, that a defendant, even if guilty, should be put to the alternative of perjury, or any thing in the nature