8 Paige Ch. 135 | New York Court of Chancery | 1840
The master erred in placing any reliance whatever upon the general affidavits of either party, swearing to the number of their witnesses, without stating what they expected to prove by them. It is the settled practice of this court, in an affidavit of merits, to require the party to state what such merits are ; so that the court may see that the defence is not merely imaginary. And that the defendant may be in a situation to be prosecuted for perjury, if he swears to that which he knows to be false. The same rule should be applied to affidavits of the materiality of the witnesses in reference to a question of venue. And the party should state in his affidavit the substance of what he expects and believes he will be able to prove.by the respective witnesses named therein ; so that the court as master may judge of their materiality. From the nature of the issues which the master has framed for trial, it is wholly incredible that either can have fifty witnesses, the testimony of each and every one of whom can be material; even if the custom of merchants in the city of New-York was necessary to be proved. The master, therefore, instead of acting upon these general affidavits, should have rejected them entirely; or he should have called the deponents personally before him and examined them on oath, as to what they expected and belived they
Rejecting these general affidavits, there was nothing before the master to show that any witness residing either in New-York or in the county of Monroe, was material upon the trial of the issues. And as neither the bill nor the answer was sworn to, it was impossible to say where the questions in issue arose ; so as to enable the master to fix the place of trial with reference to the probable residences of the witnesses necessary to establish the facts as to which the respective parties hold the affirmative upon the trial. The master, therefore, instead of sending the issues to be tried in the city of New-York, or in any other large county, where the press of other business would necessarily cause great delay and consequent expense to either party who was compelled to attend there with his counsel and witnesses, should have directed the issues to be tried in some of the smaller counties where the business of the circuit would probably have allowed the trial to take place within three or four days after the opening of the court.
The exception to the master’s report must be so far allowed as that the trial of the issues shall be at the circuit court in the county of Schenectady, instead of the superior court of the city of New-York.
