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