Smith v. Brush

| New York Court of Chancery | Jun 27, 1815

The Chancellor.

The bill charges the defendant, Brush, with purchasing the note under a knowledge of the consideration for, which it was given, and of the trust under which it was taken by the payee, and deposited with Robert Smith, jun.; and it further charges him with not being a bona fide holder for a valuable consideration. To this charge the answer states, that the note was purchased in April or May, 1809, for a valuable consideration, and the items forming that consideration are particularly mentioned, and amount to 3,550 dollars; that the note was assigned to him by Robert Smith, jun., it being at that time in the hands of Therori Rudd ; and that, at the time of the assignment, he was not informed of the consideration or purpose for which the note was given, nor of any agreement, trust, or confidence, between the original parties, and that the first knowledge of any of these allegations in the bill, was obtained in November, 1809; that the transfer of the note to him was absolute and unconditional, and the samp is solely and exclusively his property.

This answer was put in, in July, 1812, and the rule to produce witnesses was entered in March, 1813, and publication passed in January last; and a motion is now made to open the publication, on affidavit of a discovery of a single witness, by whom the plaintiff undertakes to prove that the note was in possession of Robert Smith, jun., after it was due, and that Smith offered it as a pledge for money.

The decisive objection to this motion is, that the testimony would not be material if produced. It is a well-settled rule, that there cannot be a decree upon the facts charged in the bill and denied in the answer, upon the deposition of a single witness. There must be two witnesses, or concurring circumstances, to supply the place of a second witness, be-there can be a decree against the answer. (Walton v. Hobbs, 2 Atk. 19. Pember v. Mathers, 1 Bro. 52.) Here are no circumstances stated, or shown, in corroboration of what the newly-discovered witness might prove. The answer is clear and positive, and the defendant, Brush, stands upon his right to the judgment at law, as a bona fide purchaser, without notice, and for a valuable consideratioh, of negotiable paper before it was due. It was suggested that the evidence of one witness might justify the awarding of a feigned issue to try the fact of notice, or of a purchase out of time. But that step must rest upon discretion, guided by the special circumstances of the case ; and when we take into consideration the great lapse of time since Brush obtained his judgment at law, and put in his answer in this court, during which period the plaintiff has not been able to furnish any proof; and when we consider further, that the recovery on the note was strongly resisted on the trial at law, on the ground of forgery, I think it would not consist with the exercise of a sound discretion, to harass the defendant with another trial at law, when he is able to rest upon his defence here. I am, accordingly, of opinion, that the motion be denied.

■ The cause, then, came on to a hearing, and the bill, as to Brush, was dismissed, with costs.