Autrey v. Cannon, 11 Tex. 110

Hemphill, Ch. J. Several errors have been assigned; but the only material point raised by them, is as to the soundness of the proposition, that the answer must be taken as true, unless controverted by two witnesses or by one with corroborating circumstances. That such is the effect of an answer when responsive to the allegations of a bill, according to the regular course of chancery practice, is unquestionable. The rule seems originally to have been borrowed from the maxim of the Civil Law, resjponsio unius non omnino audiatur, and required the evidence of two witnesses as the foundation of a decree.

The reason of the rule is founded upon the equitable principle, that, as the defendant is required to answer under oath, and his answer is thus made evidence, his testimony should be equal to that of any single witness in opposition, and therefore two witnesses, or one with corroborating circumstances, are required to turn the, balance of proof in favor of the plaintiff. (2 Story, Eq. Sec. 1528; 9 Cranch, 160; Gresley on Eq. Ev. p. 4.) But this rule, which gives so much force to an answer, as evidence in favor of the party by whom it is made, has, in the Courts of some of the States, its exceptions.

Thus in Tennessee, an injunction bill, sworn to by the complainant, may be sustained by one witness, though it be denied by the answer. (Cooke, 110-112.) But the rule has no force under our system of pleading; or rather, its application is limited to cases in which the party responding, is directly and specially interrogated as to the facts upon which his evidence is required. The answer is not, under our system, always under oath unless it be dispensed with by the plaintiff.

An oath is not a legal requisite, unless the answer be in response to special interrogatories included in or annexed to the petition—and its verification by affidavit, under other circumstances, does not make it evidence or give it more weight than if it had been without oath. The statute regulating proceedings in District Courts, directs the mode in which parties to suits may obtain the evidence of each other ; and their testimony when thus procured, becomes evidence which can be overborne only by written proof, two witnesses or one with corroborating circumstances. (Dig.

Art. 735, 740.) But, in the case under revision, the defendant was not interrogated, or required to answer matters alleged in the petition, and his answers consequently have not the potency, as evidence, ascribed, by the statute, to answers responsive to direct interrogatories. It is very true, that answers to petitions for injunctions are required to be under oath—-but so is the petition—and there is abundant reason why, in such proceedings, the respective allegations of the parties should be under oath. The Court is invoked to exert in a

summary manner, extraordinary powers, in the grant and dissolution of its restraining process; and it is very expedient that its action should be based upon the real facts of the case. This would be, at least in a great measure, secured by the verification under oath, of the respective pleadings of the parties. The necessity of swearing to their averments would produce caution and circumspection in their statements. But the allegations of each are under oath ; and, in principle, there is no reason why more credit should be given to the statements of the defendant, than to those of the plaintiff.

Had the latter, in this case, required the former to respond to any interrogatories, and thus made a witness of him, then the statute would apply, and give extraordinary efficacy to his answer. But no interrogatories were propounded. The plaintiff did not attempt to make the defendant a witness; and his answer can have no effect as evidence in his own favor; nor does it require more than one witness to contradict and repel its statements.

We are of opinion, therefore, that there was error in the instruction, to the effect that two witnesses, or one with circumstances, was necessary to rebut the answer of defendant. But notwithstanding this error, yet, as the justice of the case was attained by the verdict, the judgment must be sustained. The allegation of the plaintiff, that neither the time, nor place of delivery, nor value of the horse was fixed by the agreement, was not sustained by the proof; and the presumption—there being no proof to the contrary—is that the horse was to be delivered immediately.

The arrangement was greatly to the disadvantage of the defendant. It sacrificed between two and three hundred dollars of his claim; and, unless the proof was positive to the contrary, his assent to such a compromise must be presumed to have been based on some supposed advantage to be derived from the prompt payment of the money and the horse. This was not done. There was no proof of tender of the horse; no offer to pay the money at the time promised; nor was the money deposited in Court, although so averred by the plaintiff. It may well be doubted whether the contract was not void for the want of consideration.

There is no averment of any valid defence against the claim of the defendant, or that its recovery could have been successfully resisted. The arrangement was to the advantage of the plaintiff. The defendant gained nothing, but was largely the loser ; and if the contract be not void, yet it could not be enforced, unless the plaintiff had literally complied with its terms, and was ready and eager to carry it into effect. Upon the whole, we are of opinion that the judgment is sustained by the facts in the cause, and that the same be affirmed. Judgment affirmed.