4 Barb. 324 | N.Y. Sup. Ct. | 1848
We do not perceive any defect in the proof of the notice of protest to the defendant Taft. The residence of Taft, after his removal, was only one hundred rods
The main question in the cause was whether Mr. Hunt was a bona fide holder of the notes, so as to exclude the defence offered, and which would have been good against the original holder and owner. The possession of the notes by Hunt doubtless raised a presumption that he was a bona fide holder for value paid, and without notice of the facts set up as a defence. That presumption, however, was not in point of fact a strong one; and was liable to be rebutted and overthrown by evidence of circumstances inconsistent with the fact of a bona fide holding. I am inclined to think that enough had been shown, when the defence was first offered to be proved, to repel the slight presumption arising from the mere possession of the papers, and that the referees erred in holding otherwise. This evidence was afterwards considerably strengthened by the testimony of Mr. Kirkland. Had the offer then been renewed, and if rejected, the defendants had rested upon this erroneous ruling of the referees, I am of the opinion that a new trial must of necessity have been granted.
When the defendants had given this additional testimony, they renewed their offer to go into evidence of their defence to the notes. But the aspect of the case was then materially altered for the worse. They had themselves proved Mr. Hunt to be a bona fide holder of the notes, as the referees held ; and assuming the testimony of Mr. Lawrence to be true, they decided the question right. At all events, that was a question of fact which belonged to them to decide. They had a right to assume that all the testimony against the bona tides of Mr. Hunt, as a holder of the notes, had been given ; and if they were satisfied on that point, in favor of the plaintiff, their finding can no more be disturbed by this court, than their decision upon any controverted question of fact in the final determination of the cause.
It is a familiar principle, that where upon the whole case, the court can see that justice has been done, an immaterial error of the court, in the progress of the trial, will not entitle the party against whom such error was committed, to a new trial. (3 Barbour’s Sup. Court Rep. 545.) The same principle has been also held applicable to a case arising on the report of referees. The rule may be thus illustrated. A party has rested his cause on evidence of the defendant’s hand-writing to a prom
Motion to set aside report, and for a new trial, denied.