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Clark's Executors v. Van Riemsdyk, 13 U.S. 9 Cranch 153 153 (1815)

Clark's Executors v. Van Riemsdyk

13 U.S. (9 Cranch) 153


The answer of one defendant in chancery is not evidence against his co-defendant, nor is his deposition, although he had been discharged by the act of assembly of Rhode Island of 1757 from all debts and contracts prior to the date of the discharge, and although the debt in suit was a debt contracted prior to such discharge, the debt having been contracted in a foreign country.

An answer in chancery, although positive, and directly responsive to an allegation in the bill, may be outweighed by circumstances, especially if it be respecting a fact which, in the nature of things, cannot be within the personal knowledge of the defendant.

A denial by the defendant that his testator gave authority to A. to draw a bill of exchange is not such an answer to an averment of such authority as will deprive the complainant of his remedy unless the defendant also deny the subsequent assent of his testator to the drawing of such bill. For a subsequent assent is equivalent to an original authority.

Semble that a discharge under the act of assembly of Rhode Island of 1766 from all debts, duties, contracts, and demands outstanding at the time of such discharge, upon surrender of all the debtor's property, will not protect him against a debt contracted in a foreign country.

It is a general rule that either two witnesses or one witness with probable circumstances will be required to outweigh an answer asserting a fact responsively to the bill. The reason is the plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence; if it is testimony, it is equal to the testimony of any other witness, and as the plaintiff cannot prevail if the balance of proof be not in his favor, he must have circumstances in addition to his single witness in order to turn the balance.

But there may be evidence, arising from circumstances, stronger than the testimony of any single witness.

The weight of an answer must also, from the nature of evidence, depend in some degree upon the fact stated.

If the defendant assert a fact which is not and cannot be within his own knowledge, the nature of his testimony cannot be changed by the positiveness of his assertion.

The strength of his belief may have betrayed him into a mode of expression of which he was not fully apprised. When he intended to utter only a strong conviction of the existence of a particular fact, or what he deemed an infallible deduction from facts which were known to him, he may assert that belief or that deduction in terms which convey the idea of his knowing the fact itself.

His having, perhaps incautiously, used terms indicating a knowledge of what, in the nature of things, he could not know cannot give to his answer more effect than it would have been entitled to, had he been more circumspect in his language.

Page 13 U. S. 154

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