The Court of Errors reversed the decision of the Vice Chancellor and Chancellor. Senator Tracy, who delivered an opinion in favor of reversal, in regard to the part of the answer of J. Jackson, alleging that the note of the 28th of June, was for a new loan, and not a renewal of the first loan, says: “ To overcome this direct and unequivocal denial and assertion of the defendant, the complainant has produced no testimony that, on any safe principle of evidence, can be deemed sufficient. The improbability that the defendant should loan so large a sum as $5,000 for 45 days, without security and without interest, to a person almost a stranger, of whom he knew nothing, except that he was in pressing want of money, would certainly go far, if the testimony was otherwise nearly balanced to convince every one of the falsity of the defendant’s statement. But it is not a question of balanced testimony; it is all, as far as the proof of witnesses is concerned, in one scale. The complainant has voluntarily appealed for the evidence of the fact, to the defendant’s oath ; and having done so, the evidence thus elici*91ted, must be taken for true, unless disproved. The answer as to this fact, is directly responsive to the complainant’s bill and in a matter necessary to the complainant’s equity; and where this is the case, as much again evidence is required to establish his allegation, as if he had not made a witness of the defendant. If the defendant’s testimony on this point be entirely discredited, it will only leave the complainant without proof in any way in regard to’ his allegation. He discredits his own witness, by way of impeaching his veracity without otherwise supplying the evidence which he has vainly sought from him, and which evidence he must have from some quarter, in order to support his complaint.
I feel constrained therefore by a necessary and well established principle of law to dissent from the decree of the Vice Chancellor, and to vote for reversing the Chancellor’s decision affirming that decree.”
From this decision Savage, Ch. J., dissented, holding that upon the evidence, the pretence of J. Jackson, of a new loan of $5,000, without security and without interest, was so completely discredited, that under the account given of the transaction by the defendant, and the absence of proof to support it, the complainant was entitled to relief, and that the decree of the Chancellor should be affirmed.
The court however reversed the decree, 13 senators voting for reversal,'and the Ch. J. and 5 senators for affirmance.
tTf See Hart v. Ten Eyck, 2 J. C. R. 62, where Chancellor Kent held that where an answer is put in issue by Sling a replication, what is confessed and admitted need not be proved; but where a distinct fact by way of avoidance, is insisted on by the answer, he must prove the fact so insisted on in defence.
An appeal, however, was taken in the cause, and Mr. Johnson, the reporter, in a note to the case in his digest, says “Spencer, Ch. J., gave a different opinion as to the latter position, in which a majority of the Court of Errors concurred, but as the case was expected to come up again, and the reporter not possessing the reasons of the court, the case was not reported.”
1 Johns. Dig. 225, § 514.-