Woodruff v. Munroe

Robinson, J., delivered the opinion of the Court. The question presented by the first bill of exceptions is, whether testimony taken under a foreign commission and used in the first trial is admissible in evidence in the trial under the procedendo ? The obvious purpose of the law in allowing the depositions of non-resident witnesses to be taken under a foreign commission, was to enable suitors to avail themselves of the evidence of parties living beyond the jurisdiction and not within the reach of the Court, and the depositions thus taken the Code declares shall be admitted as evidence in the trial of the cause. Code, Art. 37, sec. 15. Now in the trial under the procedendo, the Court has no more power to compel the attendance of such witnesses than in the first, whereas their testimony may be [156] as necessary to a fair trial in the one case as in the other; It is evident, therefore, that the purpose of the law could only be gratified, and the rights of litigants fully protected, by allowing them to offer as evidence the depositions thus taken, as long as it may be necessary to a fair trial of the case. We can conceive of no possible reason why a second commission should issue to take testimony already in Court, whilst such a course of procedure would subject parties to vexatious delays, and burden them with oppressive costs. If the jury in the first trial had failed to agree upon a verdict, it will hardly be contended that the testimony would have been inadmissible in the second trial; yet in that event, as in a trial under a procedendo, the law directs the Court shall try the case again as if no trial had taken place. The Court also erred, Ave think, in excluding the deed of trust offered in evidence in the second bill of exceptions. The defendant denied the endorsements, and alleged they were forgeries, and for the purpose of proving his adoption and ratification thereof, the appellants offered in evidence a deed of Harrison, the drawer of the notes, conveying in trust certain property to indemnify and save harmless the defendant as endorser of the said Harrison, Avith the notes and endorsements therein specifically set forth. Two of the notes thus described in the deed, one of $434^%, dated October 20th, 1857, and the other of ^p328TV¡¡-, dated October 28th, 1857, correspond substantially in every particular AAnth' notes upon which this suit is brought. As to these two notes at least the deed Avas clearly admissible for the purposes for which it Avas offered. In Whiteford vs. Munroe, 17 Md., 136, the objection Avas not to the admissibility of this deed in evidence, but to the plaintiffs’ second prayer, Avhich claimed that Jit was to be considered by the jury as evidence of the ratification by Munroe of his endorsements of the notes sued on in that case. And it Avas held by this Court that the prayer Avas properly rejected, because the notes, the cause of action in that suit, did not cor [157] respond with the notes referred to in the deed. The objection, therefore, was to the insufficiency of the proof. But in tiiis as in that case the deed itself can only be offered as evidence of the defendant’s ratification of such notes as correspond with those referred to in the deed. It is true there is a general provision embracing all other notes upon which the defendant was endorser, besides such as are specifically set out, but this is to be understood as referring to the genuine endorsements of the appellee. Such a clause cannot surely be construed as a ratification by him of endorsements not particularly described in the deed, and whieli when presented are pronounced by him to be forgeries. ■ The purpose of this provision was to protect the appellee’s endorsement of other notes not enumerated in the body of the deed. We are also of opinion that the evidence offered in the third bill of exceptions ought to have been admitted. Other causes, it appears, were pending in the Circuit Court, brought by different plaintiffs against the appellee as endorser of Harrison, in all of which depositions had been taken under a foreign commission. Under these circumstances a written agreement was signed by the attorneys for plaintiffs and defendant, that the depositions taken in the ease of Walters & Harvey against the defendant should be read in evidence in the trial of this cause, and under this agreement the evidence was in the first trial admitted. This agreement was filed in Court, and remained unrevoked at the time of the trial under the procedendo. Its terms are general, and nothing from which it could be inferred that it was the intention of the parties to limit its operation to the first trial. We think, therefore, that the plaintiffs were entitled to this testimony in the second trial. In The Merchants’ Bank vs. The Marine Bank, 3 Gill, 97, it was decided that a statement of facts, agreed upon in the first trial, could be offered in evidence in the second trial under a procedendo. The defendant’s first prayer was properly granted. It is true, that the holder of a note payable to B, or order, and [158] endorsed by him in blank, may, in a suit against a remote endorser, strike out the intermediate endorsements, but if he undertakes to trace his title through the endorsements and sets them out in his declaration, he will be required to prove them as laid. The proof must correspond with the allegation. In Chitty on Bills, 637, the author says, “it will be incumbent on the plaintiff to prove his interest in the bill or note, or in - other words, how he became a party to it. The payee or the bearer of a bill or note originally payable to bearer has in general only to produce the instrument. But if in an action by the indorsee of a note payable to A, or bearer’, the indorsement by A be unnecessarily stated, it must be proved as laid.” Wynam vs. Bend, 1 Campbell, 175. The same principle is announced in Byles on Bills, sec. 118, and Abbott, C. J., is quoted as saying, “ all the indorsements must be proved or struck out although not stated in the declaration.” It was held in Crutchlow vs. Parry, 2 Camp., — that it was not necessary to prove the prior indorsements, because they were admitted by the subsequent indorsement of the defendant, but in this case it cannot be said that the prior indorsement of the appellee admitted the subsequent indorsement of Elizabeth Harrison. The plaintiffs, therefore, having set out her indorsement in the declaration as the basis of their title, we think they were bound to prove it. The second prayer was also properly granted. If the indorsement was a forgery, and the defendant did not ratify or sanction the same prior to the maturity and transfer of the i notes to the plaintiffs, he was not liable. The fifth prayer, however, we do not think was sufficiently guarded. Ordinarily, of course, any party may deny his signature, and if it was not made by him, or by his authority, or has not been adopted by him, the defence is available. But he cannot allege the forgery if he has pronounced it genuine to a purchaser who bought it on his assurances, or has in any way by treating it as genuine assisted its negotiation. 2 Parsons on Notes and Bills, 593. This prayer declares in broad [159] terms that the defendant is not liable if the indorsements are forgeries, although he may have admitted his liability upon the notes, at any time subsequent to the indorsements. How if he had adopted these notes prior to their maturity, and by such adoption assisted in their negotiation, he would be ; estopped from setting up the forgery in a suit by a bona fide holder. (Decided 1st July, 1870.) The Court was right in rejecting the plaintiffs’ third prayer. The defendant was not liable for the payment of the notes, on account of the admissions relied on, and made subsequently to the maturity of the notes, and it would be very unfair to infer from such admissions that Harrison, the drawer, had authority to use his name. It is unnecessary to conjecture as to the motives which may have prompted these admissions. They may have been made to screen the drawer from a prosecution for forgery. Be that as it may, however, it is clear that they were not evidence for the purposes claimed in this prayer. Being of opinion that the Court erred in the first, second and third bills of exceptions, and also in granting the defendant’s fifth prayer, the judgment will be reversed and a new trial awarded. Judgment reversed and new trial awarded.