J. H. Thorington vs. T. H. V. Carson, et al., 1 Port. 257

•By Mr. Chief Justice .Lipscomb : In this case, the bill was filed to carry into specific execution ante-nuptial articles between Carson and his wife.

The bill sets out, and makes an exhibit of a copy of the articles ; alleging that the original is not in the possession or control of the complainant, and it prays that the defendants may be required to answer, “ Whether exhibit A is not a true copy of an original, which was executed, as it purports to be, and what has become of the original deed, of which the said exhibit A is a copy.” To this part of the bill, the defendants Howard, Foster, Mitchell, and Graham, answer — “ That the original articles, of which éxhibit A in the complainant’s bill purports to be a copy, has never been.in their possession, until procured from the office of the clerk of the County Court, on the 11th day of October, 1.825 and it is hereto attached, and prayed to be taken as a part of their answer ; the defendants further answering say, “ they are informed and believe said articles of marriage settlement was not executed until after the marriage of Thomas H.

Y. Carson to Anitta Denson,” &c. T. H. V. Carson, the husband, filed his separate answer admitting that the articles were executed in the manner, and at the date alleged in the complainant’s bill. There is no proof of the execution of the articles of the marriage contract. Nancy Denson, the mother of Mrs. Carson, who seems, from the exhibit A, to have been a subscribing witness, does not appear to have had the original before her, when her testimony was taken.

She cannot, therefore, be received as proving the execution by the best evidence, and the absence of the original has not been accounted for in a way to let in such secondary evidence. In fact, the original seems to have been made an exhibit to, and a part of defendant’s answer. And it is difficult to conceive the reason why it was not shown to Mrs. Denson, at the time of taking her deposition.

If the bill had been filed against the husband alone, for the specific performance of the articles of his ante-nuptial contract, his answer admitting the execution of the articles, would perhaps, have been sufficient, without further proof that fact. But this rule cannot apply to this case: the admissions of Carson cannot be made evidence against the other defendants. The general rule that we find in the books, that whatever is specifically averred in the bill, and not denied in the answer, must be taken as admitted, is certainly subject to many restrictions and exceptions.

It seems to me that it must be confined to averments of matters within the knowledge of the defendant, a party or privy to the particular transaction ; in such a case it would seem that the positive averment by. one party, of the truth of the fact, ought to be received as tr ue, if not denied by the other. To illustrate the exception more particularly, Carson, the husband, was a party to the articles alleged to have been entered into by him on a particular day.

If he had omitted in his answer denying the alleged fact, so specially averred in the bill of the complainant, to have been entered into, in the manner.and at the time stated, his silence might well be construed into an admission of the truth of the allegation. But the other defendants were not parties to the articles, and could not be supposed to be privy to the mode, and the time of their execution. Their ignorance of the circumstances of the transaction, would fender them unable to admit or deny the truth of the facts charged.

They have, however, in their answer stated, their information and belief, that the articles purporting to be the ante-nuptial contract, was not executed until after the marriage, thus putting the complainant on proof of their execution, as essential not only to their validity, but likewise' to sustain the morality of the transaction.

The complainant having failed, as we believe, to prove the execution of the articles, so far as the defendants, Howard, Foster, Graham, and Mitchell are concerned, there should have been no decree against them; but as they have not appealed, we feel bound to affirm the decree, on this ground onty’ without entering into an examination of the principle» assumed as the basis of the decree.