Munroe v. Woodruff

• Decision Date: 27 March 1861
• Citation: 17 Md. 159
• Parties: JOHN H. MUNROE v. ALBERT WOODRUFF and JEREMIAH R. ROBINSON.
• Court: Maryland Court of Appeals

17 Md. 159

JOHN H. MUNROE v. ALBERT WOODRUFF and JEREMIAH R. ROBINSON.

Court of Appeals of Maryland.

March 27, 1861

The fact that the notary, in the city of New York, employed clerks to perform part of the duties incident to his office, is no valid objection to a protest; the custom of merchants and the current of authorities sanction the employment of such aid in large commercial cities.

A commission to take testimony was endorsed, " the execution of this commission appears in a certain schedule hereunto annexed," which endorsement was signed by the commissioner as such, and sealed. HELD:

That this was a sufficient authentication and return notwithstanding the commissioner signed his name at the conclusion of the commission as Notary Public.

This court in passing upon a prayer contained in an exception, is confined to the evidence embraced in the exception, and if there is no evidence to support the prayer it is erroneous.

A prayer that the plaintiffs are entitled to recover upon the finding of certain facts, omitting entirely other material facts necessary to the maintenance of the action, is erroneous; no matter how clear the evidence may have been to prove such facts, it is necessary for the jury to pass upon it.

APPEAL from the Circuit Court for Prince George's county.

Action, brought on the 16th of January 1858, by the appellants as holders, against the appellee as endorser, of five promissory notes, all drawn by George W. Harrison, and purporting to be endorsed by James M. Benton, Elizabeth Harrison and the defendant, and all dated at Alexandria, Va and payable at the Bank of the Republic, in the city of New York. Plea, no promise as alleged.

The protests of these notes, purporting to be made as they respectively matured, by Gardiner Spring, Jr., Notary Public in the city of New York, are in the usual form, stating that at the request of the Mechanics Bank of that city, the holder of said notes, he duly presented, each of them, to the paying teller of the Bank of the Republic in said city, and demanded payment thereof, which was refused, & c. A commission was issued to the city of New York, under which testimony in reference to the protests and notices of protests of these notes, was taken and returned, from which it appears the witnesses testified in substance as follows:

Spring, the notary, says he protested the notes as they respectively matured, through the agency of George Ireland, Jr., his clerk, who was also a notary, acting as such for said Mechanics Bank; that none of these notes were presented by witness personally, but the presentments were made, as appears by his notarial register, either by George Ireland, Jr., John Hickson, Jr., or William C. Ford, who were all at that time acting in his employment.

Hickson, says, he presented, on the days they respectively matured, two of the notes, which he specifies, to the said Bank of the Republic, and demanded payment thereof, which was refused, and on the days respectively following the protests of each of said five notes, he deposited in the post office in the city of New York " notices of protest, " postage prepaid, of each of said notes, severally addressed to James M. Benton, Elizabeth Harrison and John H. Munroe, Alexandria, Va.; that every one of these notices so mailed by him was filled up from a printed form, signed by said Spring, as notary, similar in every respect to the following.

New York, _____ -- 1857.

$ ____ Please take notice that a promissory note made by _____ for $ -- dated _____ payable ________ and endorsed by you, is this day dishonored and duly protested for non-payment, and that the holders look to you for the payment thereof; " that said printed form was in each case filled up with the amount, date of protest, and place of payment of each note; and that the said Mechanics Bank was the agent of the plaintiffs at the time of these protests.

Ireland and Ford, prove, that as clerks for said Spring, (the former being also himself a notary,) they presented the other three of said notes, on the days they respectively matured, to said Bank of the Republic, and demanded payment thereof, which was refused.

This commission to the city of New York was directed to Jonathan S. Ely, as commissioner, and the record states that " the said commissioner, Jonathan S. Ely, Esquire, returned said commission, together with his return thereto, and sundry other papers connected therewith, which are in the words following, to wit," & c., and at the conclusion of the commission the signature is " Jonathan S. Ely, Notary Public," but on the back of the commission is this endorsement: " The execution of this commission appears in a certain schedule hereunto annexed," which is signed " Jonathan S. Ely, Commr. (Seal." )

A commission was also issued to Alexandria, Va., under which testimony was taken and returned, but as the record does not show that this evidence was offered or used by either party it need not be stated.

1 st Exception. The plaintiffs offered in evidence the protests made in the city of New York, by Spring, the notary public, and the evidence taken under the commission issued to Ely, of that city, for the purpose of showing a sufficient demand of payment and notice of dishonor to the defendant, as endorser of the notes sued on. The defendant objected to the sufficiency of said proof for the purpose for which it was offered, but the court (CRAIN, J.) overruled this objection and permitted said proof to go to the jury as sufficient evidence to prove a demand and notice to the defendant to bind him as endorser. To this ruling the defendant excepted.

2 nd Exception. After the evidence detailed in the preceding exception, made part of this, the defendant proved by Benton, the first alleged endorser on all of said notes, (who, after objection sustained to his competency, was restored thereto by a release of the defendant from all liabilities on account of his said alleged endorsements, made in open court and reduced to writing,) that his own name, as payee, and first alleged endorser of said notes, was not in his own proper handwriting, but was a forgery made by the maker of said notes, and that the names of Elizabeth Harrison and of the defendant was also not in their handwritings respectively, but were attempted imitations thereof. (The residue of this exception is fully set out in the opinion of this court.) The verdict and judgment were in favor of the plaintiffs and the defendant appealed.

The cause was argued before LE GRAND, C. J., TUCK, BARTOL and GOLDSBOROUGH, J.

Thos. F. Bowie, for the appellant:

1st. The commission to New York was not properly returned. It directs that it shall be returned under the hand and seal of the commissioner; he signs it as Notary Public, and without a...