Walters v. Munroe

Goldsborough, J., delivered the opinion of this court. This was an action brought by the appellants against the appellee, in the circuit court for Prince George’s county, to recover the amount of a promissory note for $352.97, signed by Geoige W. Harrison, and endorsed by tire appellee, payable ninety days after date, dated the 15th of September 1857, and passed to the appellants by Harrison. The appellee pleaded that he did not promise as alleged, and issue was joined. At the instance of the parties, a commission to take testimony was issued to two commissioners in Alexandria, Ya., who executed the commission and returned the same, with the testimony taken thereunder. 1st-Exception.

At the trial of this cause, the plaintiffs proved that they composed, at the date of the note sued on, and at the time of bringing this suit, and are now the persons composing the firm of William T. Walters & Co., and further offered in evidence the proof taken under the commission and the deed of trust mentioned therein, and proved that the appellee had admitted that he was fully indemnified for all the liabilities embraced in said deed; and then asked the court to give the following instructions: «1st. If the jury believe, from tire evidence, that the endorsement of the defendant on the note in suit was made by Harrison, with the consent and knowledge of Munroe, then that it is included in the deed of trust, and binds Munroe.” «2nd. That if the jury should further find, from the proof, that the said Harrison conveyed all Iris property, by said deed of trust, to indemnify Munroe, then that no protest or notice of non-payment was necessary to be given to Munroe to establish his liability.” «3rd. If the jury should further find that the defendant admitted that he was indemnified for all his liabilities for ¹⁵⁷ Harrison, that such admission dispensed with the necessity of notice of demand, dec., to hind him as endorser.” “4th.

If the jury should further believe, from the testimony, that the note in suit, matured on the 17th of December 1857, and the deed of trust, in 1858, conveyed all the property of Harrison to indemnify Munroe, and that Munroe admitted that he was fully indemnified for all his liabilities embraced in said deed, then that the absence or want of notice is dispensed with.” “The court granted the first, but refused the plaintiffs’ other prayers, and instructed the jury that if they should believe the facts upon which the plaintiffs’ prayers are hypothecated, that the necessity of notice of demand is not waived or dispensed with by the evidence of the case.” The plaintiffs excepted to this ruling. 2nd Exception. The plaintiffs having offered the evidence in the preceding exception, by agreement made a part of this, the defendant offered as a witness James M. Benton, one of the