1 Johns. Ch. 459 | New York Court of Chancery | 1815
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
■ The cause, then, came on to a hearing, and the bill, as to Brush, was dismissed, with costs.