1 Root 255 | Conn. | 1791
The defendant may not be admitted to testify as moved for; the defendant may appeal to the conscience of the plaintiff if living, and call upon him for a disclosure upon oath, of the facts alleged in his complaint, and this is agreeable to right reason, to the rules of proceeding in chancery, and is clearly what the statute meant and intended; for it provides, that in case the plaintiff shall refuse to be examined upon oath, he shall be nonsuited. If the defendant might prove his complaint by his own oath, there would be no need of this provision.
The plaintiff by his answer to the bill may make it necessary; nay he may compel the defendant by appealing to his conscience, to disclose on oath the truth respecting his own bill; but this must come from the plaintiff, and cannot be upon the motion of the defendant. The practice upon this part of the statute has been heretofore rather vague and uncertain and very little may be derived from it, which goes to illustrate or settle any principles. The original promisee being dead may be the misfortune of the defendant, but doth not alter the law.