Francis W. Dana versus William Underwood, 19 Pick. 99

Shaw C. J. delivered the opinion of the Court. The plaintiff insisted that he ought not to have been required to prove the indorsement of Nathaniel Brown, without a prev'ous notice that such proof would be required, conformably to the rules recently adopted. It appears that this cause was once tried before these rules went into operation, that the same grounds of defence were then taken, and proof was required and offered upon this point.

The object of the rule certainly is, not to take away any legal grounds of defence, but to facilitate trials and prevent delay and surprise, by giving notice of some particular grounds of defence, not usually expected, that the plaintiff may come prepared with the requisite proof. But when notice is once effectually given, it must be considered as applying to each subsequent trial of the same suit.

In the present case we think the actual defence made on this ground in a former trial, before the rule went into operation, was a sufficient notice, to put the plaintiff on his guard in this respect, and that the judge was correct in deciding, that this was a sufficient compliance with the rule. The plaintiff offered the note, together with the testimony in the case, as evidence under the money counts, and insisted that he had a right to recover without proof of the actual indorsement of Nathaniel Brown.

The Court are of opinion that the decision of the judge at nisi prius, in holding that the plaintiff could not recover on the money counts, without prov ing the indorsement of the payee, was correct. The case of Boardman v. Gore, 15 Mass. R. 331, rests upon the ground, that the evidence proved a loan of money by the plaintiff to the defendant, jointly with his partner Grafton, through the agency of a broker, acting in behalf of Gore & Grafton. But it was expressly held, that the plaintiff could not recover as indorsee of the note, without proving the indorsement.

The recovery was independent of the note, and the note was used for no other purpose than to show, that Grafton, by offering the pártnership name on the note, professed to act for the partnership, and thus raised a presumption that the money advanced by the plaintiff, went to the use of the firm. Had Boardman transferred the note to an indorsee, who had brought the action, it would have1 presented a very different question, because there would have been no privity between the makers and the holder, and there would have been no evidence of a loan of money.

It is upon this ground it is held, that an indorsee must prove the handwriting of the first indorser, because this gives the note its negotiable character, and enables any person to declare upon it, as an indorsed note ; but he is under no necessity of proving the handwriting of any other indorser, against whom he does not proceed, because he may strike out all but the first indorser and make the note payable to himself.

So in the present case, upon the evidence, taking the facts as stated by Edwards, the original transaction would have constituted a loan of money, between Charles Brown (and perhaps the defendant) and Shelton, without the genuine indorsement of Nathaniel Brown, that is, if Nathaniel Brown’s name had been forged. I say perhaps Underwood, because he intrusted his signature with Charles Brown for that purpose, but of this it is not necessary to give an opinion.

But being a loan of money only, and not a claim as indorsee of a note, it is like other dioses in action not negotiable, so that his indorsement would give to no other person a title to claim the money in his own name as of his debtors. It was contended that this might be considered as a note payable to a fictitious person and so in legal contemplation may be treated as a note payable to bearer, and pass by delivery without indorsement. But the Court are of opinion, that this is entirely unsupported by proof, and inconsistent with the proof.

That a note is payable to a fictitious payee, is a matter of fact to be proved. In this case the original offer was of a note signed by Charles Brown and Underwood as makers, and Nathaniel Brown, the brother of Charles, as indorser. Nathaniel Brown was often at his brother’s counting room, and transacted his business there. The handwriting resembles his and was undoubtedly intended to pass as his. If it was not actually indorsed by him, and it could be proved that it was done by any other person, through whose hands it had passed, can it be doubted that the proof would convict that person of forgery ?

But it is ingeniously argued, that any person is to be deemed fictitious to whom the note is not in fact transferred or intended to be transferred, and who in fact has no interest or concern in it. ®ut ^ this principle could be adopted it would be wholly im material whether the indorsement is genuine or not, so far as to give to the instrument the character of a negotiable note and when the indorser himself is not actually sued. For it would be always open to the dilemma, if he is a party it is a genuine indorsement, if he is not, he is a fictitious payee, and no indorsement is necessary.

One other question was raised and argued, which it may be proper to consider, because it may again arise, in case a new trial is had. The plaintiff objected to the deposition of Noah Edwards, taken by the defendant, because the defendant, by way of interrogatory, embodied therein a copy of a former deposition, of the same witness, which the plaintiff had taken for this cause. And the Court are of opinion that this objection is well founded, and the introduction of such former deposition was irregular and inadmissible. Where one party takes a deposition, it is at his option to use it or not, as he thinks fit.

And it has been held that where a deposition taken by one party is returned and filed, and the party taking it does not think proper to use it, it cannot be read by the other party without consent. One reason for this, among others, is obvious. The parties are under very different rules, in the mode of putting their questions to a deponent. The taker is restrained from asking leading questions ; the adverse party may put leading questions.

A party may try the ex peri ment of taking the deposition of a person, known to be a willing witness for the other side ; or believing that he is favorable to his own side, finds the contrary in the progress of the examination. The adverse party, finding him a willing witness on his side, puts leading questions and gets out answers, which he could not do if he were his own witness.

Now if this deposition, instead of being used at the option of the taker, may be used by the adverse party without and against his consent, it would be wholly reversing the rules of examination and going counter to the reasons on which those rules were established-If the adverse party cannot read such deposition when returned, without consent, á fortiori he cannot avail himself of a copy of it, and by introducing it into another deposition, make it evidence for him.

Nor is it necessary ; in taking the testimony to chief and anew, the witness can state the same facts again if they are true and he remembers them, and if they are not they ought not to be made evidence. But the strong, and in our judgment the decisive objection, is, the party would be allowed to introduce a deponent as his own witness, whom he has had the right to cross-examine, and the adverse party has not. There are some other objections to the admission of a deposition thus taken, but those now stated are decisive. Note.

A new trial was granted on the ground that the verdict was against the evidence, in respect to the genuineness of the signature of the indorser.