Whiteford v. Munroe

Goldsborough, J., delivered the opinion of this court. The,appellant instituted this suit in the circuit court for Prince George’s county, against the appellee, as the joint drawer, with one George W. Harrison, of two promissory notes, one dated the 29th day of July 1857, for $750, and the other dated the 21st day of September 1857, for $450, payable respectively sixty days after date, to the order of James M. Benton, negotiable and payable at the Merchants Bank of Baltimore, with the name of James M. Benton endorsed on them, and passed to the appellant by Harrison. The appellee pleaded that he did not promise as alleged, •and payment, and these pleas were put in issue by the replication of the appellant. ¹⁴⁸ At the instance of the appellant, a commission to take testimony was issued and directed to two commissioners in Alexandria, Virginia; the commission was executed, and the testimony taken thereunder returned to the court from whence it issued. . At the trial of the cause, the appellant took eight exceptions to the rulings of the court below, and the verdict and judgment being against him, he appealed to this court.

We approve of the ruling of the court on the prayer of the plaintiff in the first exception, because by this prayer, the construction of the deed referred to, is submitted to the jury, when it ought to have been decided by the court. The court was also right in rejecting the prayer in the second exception; because, (hough the construction of the deed is reserved to the court, we find no sufficient identification of the notes, for the amount of which the suit was brought. The note for $750, it was urged by the appellant’s counsel, was so nearly described by No. 17 in the deed; as to render the deed operative as to that note. But we cannot concur in this view.

The note sued on is a joint and several note, signed by Harrison and Munroe and payable to Benton, dated the 29th of July 1857. The note referred to in the deed is anote dated the 2Glh July 1857, drawn by Harrison, and endorsed by Benton and Munroe. And it will not be contended, that if suit, were brought for such a note, the note in the plaintiff’s nar. could be given in evidence to support it. The second note for $450, part of the appellant’s cause of action, is nowhere, in terms, mentioned in the deed; and although the general provisions might, entitle the holder of these notes to participate in the fund, (upon which, however, we mean to