Objections to the Admissibility of Pleadings.]-Before a plea of any kind, whether articles, libel or allegation, is admitted, it is open to the adverse party to object to its admission, either in the whole or in part; in the whole, when the facts altogether, if taken to be true, will not entitle the party giving the plea to the demand which he makes, or to support the defence which he sets up; in part, if any of the facts pleaded are irrelevant to the matter in issue, or could not be proved by admissible evidence, or are incapable of proof. These objections are made and argued before the judge, and decided upon by him, and his decision may be appealed from. For the purpose of the argument, all the facts capable of proof are assumed to be true: they are however so assumed merely for the argument, but are not so admitted in the cause; for the party who offers the plea is no less bound afterwards to prove the facts; and the party who objects to the plea is no less at liberty afterwards to contradict [ *510 ] the facts.(h) The principle, that the contents of the libel are to be taken for the purpose of argument as true, does not go the length of supposing every syllable stated to be true. Averments distinctly pleaded as facts must be assumed to be proved; while averments of an inferential and argumentative character, and which should not be too lavishly introduced, are to be taken only as true to the extent that the inferences themselves can fairly be drawn from the circumstances pleaded as facts.(i) This proceeding is attended with great convenience, in abridging the introduction of unnecessary and improper matter, to which parties themselves are generally too much disposed. They are apt to consider trivial circumstances to be important, and desire them to be inserted in the plea; a desire which neither the honest reluctance of the practitioners, nor the judicious advice of counsel, is always able to counteract: even the authority and vigilance of the court itself cannot altogether prevent redundant pleading, and can only check it by taking it into consideration on the question of costs. The proceedings just referred to have also the convenience of enabling parties, in many instances, to take the opinion of the court in a very summary way, particularly in amicable suits: if the facts are candidly stated, and the court, upon the plea being objected to, should be of opinion, that, if proved, the facts either will or will not support the prayer of the plea; in the one case, if the plea is admitted, the further opposition may be withdrawn; in the other case, if the plea is rejected, the party offering it either abandons the suit, or appeals, in order to take the judgment of a superior tribunal. This course saves the expense and delay consequent upon proving the facts by witnesses, in cases where there exists no doubt of the facts being correctly alleged in pleas, and where the question between the parties is principally or perhaps altogether a question of law, arising out of the facts so stated in the plea.(k) Contestatio Litis.]—If the libel or articles are admitted, the defendant may contest the libel affirmatively or negatively. If he is not (h) Rep. Eccl. Comm. p. 17. (i) Neeld v. Neeld, 4 Hagg. Eccl. R. 266; Montefiore v. Montefiore, 2 Addams, 354. (k) Rep. Eccl. Comm. pp. 17, 18. See Croft v. Croft, 3 Hagg. Eccl. R. 311; Lock v. Denner, 1 Addams, 353. desirous of contesting the suit negatively he may *confess ] the libel and contest the suit affirmatively, and submit [ *511 himself to the judge and offer what damages are to be taxed, or he may contest the suit negatively by denying it,() and this is what is called contestatio litis, or contesting suit, upon which the defendant is assigned to answer thereto. If the plaintiff consider that he may be better relieved by the answers of the party principal, he may upon prayer to the court obtain a decree for an answer.(m) Of Answers.]-When the plea has been admitted, a time, or term probatory, is assigned to the party(n) who gives the plea to examine his witnesses, and the adverse party is assigned, except [ *512 ] in criminal matters, to give in his answers upon his knowledge or belief of the facts alleged.(o) A personal answer ought to be pertinent to the matter in hand-absolute and unconditional-and clear and certain.(p) oath to Personal answers are provided in law to assist the proof of the adverse party. If these answers are not clear, full, and certain, they are considered in law as not given at all, and upon motion the judge ought by an interlocution to enjoin new answers; it being the same thing to give no answer at all as to give a general and insufficient answer.(g) Answers are not confined to being mere echoes of the plea, accompanied with simple affirmances or denials, but the respondents are at liberty to go into all matters not more than sufficient in fair construction to place the transactions, as to what the (1) Conset. 86. (m) lb. (n) If due diligence has been used, the terin probatory may be extended for the cxamination of material witnesses; Portsmouth v. Portsmouth, 1 Hagg. Eccl. R. 1. Sec Jenkins v. Barrett, Id. 12. A term probatory is said to be that time or delay which was given to the plaintiff wherein he might prove what he pleads or sues for; nor has the plaintiff the sole and absolute benefit of it, for the defendant may likewise make use of this term, if the plaintiff renounces it; Conset. 107; see Oughton, tit. 75. Orders of the Court. 1. That on the first session of every Hil ary, Easter, and Michaelmas term, publication shall pass on all pleas given in and adınitted on or before the by-day of the term preceding; unless upon such first session cause be shown, to the satisfaction of the court, for extending the term probatory. Provided that nothing herein contained shall preclude the court from assigning a shorter term probatory, or prevent the party giving the plea from sooner praying publication. 2. That a party intending to counterplead shall assert his allegation the court day on which the term probatory expires, and shall bring it in on the following court day; unless on that day cause be shown to the satisfaction of the court for allowing further time for bringing in such allegation. 3. That upon answers being prayed the proctor praying the answers shall forthwith answers. 4. That when application is intended to be made for extending the time in any case, notice thereof in writing, and of the grounds on which the application is to be made, shall be given to the adverse proctor, and delivered into the registry three days before the making of such application. 5. That any neglect or delay in bringing in answers, or in other proceedings, shall be matter of consideration in respect of costs, either immediate or at the end of the cause. Order 1st Sess. Easter T. 1827, as to (0) Rep. Eccl. Comm. 18. (q) 1 Burn's Eccl. L. 54; Cockburn, 28, 32, s. 19. answers are called for, in the true and proper light.(r) The answers are prepared by the practitioner, and either give a positive or qualified admission or denial to the averments contained in the plea, state ignorance of the circumstances pleaded, or enter into explanations respecting the same; they are afterwards submitted to the advocate engaged in the cause for him to settle, and after they have been carefully examined and approved of by the party, they are sworn to before the judge or his surrogate, and deposited in the registry with the other papers in the cause. The opponent party's proctor then obtains an office copy thereof, submits the same to his counsel, to advise upon their sufficiency, and should he be of opinion that they are insufficient, the objections taken are mentioned, and notice thereof sent to the judge, who, after hearing the arguments of counsel on both sides, decides upon their sufficiency or insufficiency, and if his decision be in the negative further amended answers are given in.(s) If the party giving in any allegation shall require the answers of the adverse party, he shall, on the day on which his plea is admitted, apply to the court to assign a time for bringing in such answers, and unless the answers shall be brought in at or before the time assigned, [ *513 ] the facts pleaded shall be taken pro confesso, as against the party so neglecting to give in his answers. That the expense of taking depositions to prove facts confessed in answers or admitted in acts of court, if taken after such confessions or admissions, shall be paid by the party producing the witnesses, unless the court shall think fit to direct otherwise. () That in all cases the court may extend the time upon reasonable cause shown.(u) In answer, a party, first, is bound only to answer to facts, not to his own motives nor to his belief of the motives of another person: second, where the plea avers ignorance of the real nature of a transaction by a party to such transaction and to the suit, the other party is, in his answers to such plea, allowed to state facts, inferring full knowledge thereof and acquiescence therein. A party is not bound to answer when his answer would criminate himself, nor, it should seem, when it would tend to degrade him. (v) If a party does not give in his answers on the day of the return of the decree personally served, he will be pronounced contumacious;(x) but a party cannot be pronounced in contempt at the same time that his answers are held to be insufficient.(y) The use of answers is to supercede the necessity of taking evidence, causes are therefore sometimes heard upon the answer of the defendant only.(z) When answers have been taken to a libel, but no witnesses examined, the court must take the facts from the answers when read. (a) If the answers are incorrect or redundant, the other side should not bring the case before the court upon them but plead. (b) Answers only become evidence if read by the adverse party, which being at liberty either to do or omit, it rests with the (r) 2 Addams, 40. (8) 4 Chitty's Pr. 220. (1) This order supersedes the necessity of taking out a decree for answers as directed by the third section of the order of court of Easter term, 1827; ante, p. 511, n. (u) Orders of Court made 3d session of Hilary term, 1830, 2 Hagg. Eccl. R. xv. xvi. (v) Swift v. Swift, 4 Hagg. Eccl. R. 139. (x) Hagg. Eccl. R. 33; Cockburn, p. 28, s. 2. (y) 2 Phill. R. 582. (a) Ib. 339. (b) Ib. 340. adverse party either to make or exclude them from being evidence in the cause by a very simple process. (c) The court has a right, not exercised by the advocates, of looking into the sworn answers of the parties, though not read as evidence; this [ *514 ] has been done as to facts attending an alleged marriage.(d) The court refused to allow inspection by the registrar of depositions (taken abroad) prior to publication. (e) In a suit for a divorce for adultery by the husband, if a plea has been given in by the wife, and the husband has put in answers to it upon oath, the court will be at liberty to look into such answers. (f) In causes of adultery, proceeded against by libel for seeking a divorce, the defendant's answers may be, though they 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 pœnam legalem, the defendant's answers may not be taken, not even 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 other cases. (g) Oath ex Officio prohibited.]—The stat. 13 Car. 2, c. 12, s. 4, enacts, "That it shall not be lawful for any ecclesiastical judge, or any person exercising ecclesiastical jurisdiction, to tender or administer to any person whatever the oath usually called the oath ex officio; or any other oath whereby the person to whom such oath is tendered or administered may be charged or compelled to confess or accuse, or to purge him or herself of any criminal matter or thing whereby he or she may be liable to censure or punishment." In criminal suits an issue negative or affirmative is the only answer, and the calling for any other is an appealable grievance ;(h) though not on oath, nor on points in themselves criminal.(i) By the common law of England no party is bound to furnish evidence against himself. In the ecclesiastical court and in the courts of equity, however, a party is bound to answer under some limitations; but there seems to be no precedent for compelling a party to answer as to secret intention and meaning; he is bound only to answer as to facts. It is the doctrine of the ecclesiastical courts that a party is not bound in criminal *suits to answer so as to criminate himself however re[ *515 ] motely-so as even to form a link in a chain of proof. And in a civil suit, as for instance in a suit for separation by reason of adultery, a party is not bound to answer those articles which involve an express or implied charge of criminality.(j) So in chancery the party is protected against answering any question not only that has a direct tendency to criminate him, but that forms one step towards it.(k) Sir John Nicholl said, "The decision in that case shows that a witness is not bound to criminate himself; a fortiori a party is not bound to answer where a witness is not; and my impression is, that a party is entitled to protection, not only if the answer may tend to criminate but even to degrade him.”(?) Allegation responsive.]-The defendant may, if he thinks proper, proceed at once to counterplead to the charge in the libel, or he may wait until the plaintiff has examined his witnesses before he gives on his part an allegation controverting his adversary's charge. This is called a responsive allegation, and is proceeded on in the same manner as the libel or articles. Objections to its admissibility may be taken, answers upon oath be required, and witnesses examined.(m) Allegation in Rejoinder.]-The plaintiff may again in his turn, in like manner, rejoin by a further allegation; and in that and every subsequent allegation the same course may be pursued. The general rule upon this subject is, that in a rejoinder to or upon a responsive allegation, the only facts strictly pleadable are those either contradictory to or explanatory of, facts pleaded in the allegation to or upon which it rejoins, and those noviter perventa to the proponent's knowledge; though the court may, under certain circumstances, in its discretion, permit facts to be pleaded which come under none of those descriptions. (n) In answer to a libel, the defendant may either deny the facts stated in the libel, or he may counterplead facts which, assuming the libel to be true, offer a legal defence to the charges contained in it. But it is not necessary that he should [*516 ] always distinctly deny or traverse the facts in the libel. He may state the facts in a different manner, so as to give them a different legal character and effect. Each party is entitled to state the circumstances his own way.(o) We have already seen, that desertion is not a ground of divorce,(p) and that the wife's ante-nuptial incontinence cannot be pleaded. (q) But if in answer to a libel for divorce, on the ground of adultery, where the parties were living apart at the time the adultery was charged to have been committed, the wife set up a case of desertion by the husband without any provocation on her part, it seems that the husband may fairly rejoin her ante-nuptial incontinence as a justification for separation, although the husband cannot make such a statement part of his original libel.(r) Supplemental Allegations.]-We have already seen that although the court will compel the parties to bring the whole of their substantive case before the court at once if possible, yet that in cases of adultery a party is not bound by the original charges in the libel, but that even acts of adultery not existing at the commencement of the suit may be brought forward in a supplemental allegation. (s) The conclusion of the cause may in some cases also be rescinded for the purpose of giving in fresh allegations. (1) The renouncing all further allegations, unless exceptive, is the virtual conclusion of the principal cause as far as the rights of the parties extend. They cannot retract without the leave of the court, which in its discretion may allow fur (1) Swift v. Swift, 4 Hagg. Eccl. R. 154. (n) Dew v. Clark, 2 Addams, 102. (p) Ante, p. 419. 435. |