Scott v. McCann
| Decision Date | 07 June 1892 |
| Parties | SCOTT v. MCCANN ET AL. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Harford county, in equity.
Bill by Daniel Scott against Albert L. McCann, administrator, and others, to enforce payment of a mortgage and certain judgments alleged to have been due and unpaid. Complainant appeals from a decree in his favor, on the ground that proper interest had not been allowed. Affirmed.
Argued before ALVEY, C.J., IRVING, BRYAN, BRISCOE, MCSHERRY, and FOWLER, JJ.
Thos. H. Robinson and R. R.Boarman, for appellant.
On the 19th day of December, 1867, William E. McCann and wife executed a mortgage to Olivia Street for a thousand dollars payable in three years, with interest, payable annually. By a series of assignments, which are set out in the bill, the complainant became the owner of the mortgage, and, the same being overdue, filed his bill for a sale of the property, to pay the mortgage debt and interest. A decree was passed on the 18th of December, 1891, "that there is due from the defendants to the complainant the sum of one thousand dollars, with interest from the 19th day of December, 1889, on the mortgage, and the further sum of one hundred dollars, with interest from February 18, 1888, and costs on the judgment;" and, after limiting a day for that amount to be paid or brought in, appointing a trustee to make sale, etc. The judgment was mentioned in the bill as resting on the property. No point arises on it. The only question in the case is whether the court has allowed proper interest on the mortgage, and, incidental to that, some questions of law respecting the proof received by the court in support of appellees' contention respecting the interest. William E. McCann, the mortgagor, testified on his own behalf, and, after doing so, died, without having signed his deposition, and without having been cross-examined, and, in fact, without the appellant's having had the opportunity of cross-examining him, inasmuch as on close of his examination in chief the examiner adjourned until further notice should be given.
The only exception which is formally taken and embodied in the record is that McCann did not sign his testimony, as is required by equity rule No. 40. This rule does provide that the witness shall sign his testimony, but the rule also proceeds to say: "But if the witness for any cause may not be able to sign the same, or shall for any reason refuse so to do, the examiner shall sign the deposition, stating the reason why the witness has not signed the same." This the examiner has done, so that the requirements of the rule in that regard have been complied with; and that exception, as specially taken, cannot be sustained.
Another objection has been pressed in this court to the reception of that testimony, and from a sentence in the opinion of the court it would seem to have been pressed in the circuit court, and that objection is that the testimony is imperfect the right of cross-examination not having been enjoyed. Strictly speaking, the exception having been noted as a special exception, and for a special reason, the reason now pressed may not be properly cognizable; but, as the court below would seem to have considered, and, in effect, overruled, this objection, we will consider it also. In Cazenove v. Vaughan, 1 Maule & S. 4, Lord ELLENBOROUGH lays down the rule of the common law to be "that no evidence shall be admitted but what is or might be under the examination of both parties." He adds that "it is agreeable to common sense that what is imperfect, and, if I may so say, but half an examination, shall not be used in the same way as if it were complete." In that case the testimony was admitted notwithstanding there was no cross-examination, because the court said the party objecting could have cross-examined if he had expressed the desire to do so, which he had not done. This, without doubt, is the general rule of the common-law courts. It is so laid down in Kissam v. Forrest, also, (25 Wend. 651;) but in that case it is stated that there are cases in chancery to the contrary, but they rested on their peculiar circumstances, and were not binding on courts of law. In the case of Kissam v. Forrest, after examination in chief, and before cross-examination, the witness had died, and that case is cited by Mr. Greenleaf in a note to section 445, vol. 1, but he adds that in "equity its admissibility is in the discretion of the court, in view of the circumstances," and cites Gass v. Stinson, 3 Sum. 104; and in section 554, vol. 1, of his book on Evidence, Mr. Greenleaf says that while the rule at law is as we have stated it, "yet it seems clear that in equity a deposition is not, of course, inadmissible, because there has been no cross-examination, and no waiver of the right." He suggests the case of the death of a witness before cross-examination as one where the testimony is receivable. Mr. Taylor, in his work on Evidence, (volume 2, § 1323, pp. 1271, 1272,) regards evidence situated as the testimony in this case admissible. He refers to the case of Rex v. Doolin, where a witness for the crown, after testifying, died before cross-examination, and a majority of the judges held that the testimony was admissible. That case is reported in 1 Jebb, (Cr. Cas.) 123. Mr. Taylor also refers to Davies v. Otty, 35 Beav. 208. In that case the plaintiff had conveyed real property to the defendant on a parol agreement to reconvey to him if grantor was not prosecuted for bigamy, of which he was apprehensive. It turned out that he was not liable to prosecution, and he filed a bill for reconveyance. One...
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