Mr. Justice Terry concurred.
I have no doubt, from the evidence, that the complainant is entitled to a foreclosure. The note sued on is described with exactitude in the mortgage.
The witness, Hill, in testifying that the mortgage was given to secure another note, describes the latter differently from the description given in the mortgage; and although this is not conclusive in favor of the one sued on, yet, taken in connection with other circumstances, it has some weight.
His statement that the note given in evidence was made only five months before, and yet, as it seems, was dated a year previous to the time it was made; made to bear the same date, for the same amount, to the same payee, and upon the same terms as the first note—all this would indicate conclusively that the note sued on was a mere counterpart of and substitute for the first note given. It is true the witness says, in speaking of the first note, “ this note has never been -taken up by me; it is outstanding.” This language ordinarily would be taken to mean that the note was still a liability.
But when the whole matter could have been so easily explained by the witness having in his power to state the consideration of each note, to show that they were given for different objects, to explain the reason of antedating the last note, and to declare explicitly whether he was indebted for one or both; and when also his evidence was taken by deposition ex parte, and he was not subjected to cross-examination, the language he uses will be regarded suspiciously, and only a very literal interpretation given to it. It must be considered to mean only that he has not received the note in his own hands. Of this the defendant cannot complain. He had the power, through his own witness, to make the whole truth appear beyond any question. If he suffers, it is because he failed to do what was his interest and his duty.
The judgment is reversed and the cause remanded.