delivered the opinion of this court.
This action was instituted against the appellants to recover the amount of a promissory note', dated the 23rd May 1850, at six months, for three thousand dollars, drawn and signed by the appellant Samuel Manning, in favor of “Manning, Stimpson & Co.,” and endorsed by them in the handwriting of the said Samuel Manning, and also endorsed by Joseph C. Manning. The appellee is the holder of the note.
The plaintiff below proved the handwriting of Samuel Manning, and the co-partnership of the appellants, under the style and name of Manning, Stimpson and MacTavish. The note was protested for non-payment and notice of the same, given to the appellants by handing, notice of protest to Samuel Manning. On this state of facts* at the trial below, the appellants asked the court to instruct the jury, that if they should find from the evidence that the" signature of the note offered in-evidence, is of the proper'handwriting of Samuel Manning, and that the endorsement, Manning, Stimpson & Co., upon the said note, is also of the proper handwriting of the said Samuel Manning,, then the jury must find their verdict for the defendants, upon the assumption that the transaction in question was the private transaction of the said Samuel Manning, there being no evidence.to show that the matter was known to his co-partners, or either'of them, or that it was given’ or negotiated on co-partnership’account.
This prayer the court refused and we think properly.-
Although it is clear that one partner cannot bind his co-partner in regard to a matter which is exclusively his own* yet the fact of its being his private business must affirma-* *9lively appear by some fact known, or properly deducible from circumstances which ought to inform a prudent person of the true nature of the transaction. He has the right to sign the same of the firm, and the general rule is, that where a note is proved to have been signed by one member of an existing firm, in the partnership name, the legal presumption is, that it was given for a joint indebtedness in the regular course of partnership dealings, until the contrary is shown on the part. of the defence. Thurston vs. Lloyd, 4 Md., 288, and the authorities there relied upon. We can perceive no difference in principle, between the right to sign a note in the partnership name, and to endorse one in the same name. The note in the case before us, on its face, purported to be a part of the assets of the partnership, and it was undoubtedly within the scope of the authority and power of any one of the partners to dispose of it, as it was also to dispose of any other portion of the property belonging to the firm. Had it appeared from anything in the record that this was a transaction entirely for the private benefit of Samuel Manning, and not in any way connected with the business of the co-partnership, there might be a question as to the liability of the firm; but there is no such evidence in the record, and we cannot go beyond it. The case of Tanner vs. Hall & Easton, 1 Barr., 417, relied upon by the counsel of the appellants, is not like the one now before us. It there appeared that the note was for the accommodation of the partner who endorsed it. It is more like the case of Brown vs. Duncanson & Ray, 4 H. & McH., 350, where there was evidence from which a jury might infer the bill was drawn for the individual debt of one of the partners, and the acceptance was made by him without the knowledge or consent of his co-partner. In that case the court left it to the jury to find these facts. There is nothing in the case we are now considering, from which the jury could properly deduce the belief, that the endorsement wa-S without the knowledge of consent of the co-partners of Samuel Manning; but if there had been, the court were right in rejecting the prayer of the appellants, for it submitted- no such *10inquiry to the jury, but asserted as matter of law, that the jury must find in favor of the appellants on the “assumption,” that the signature and endorsement were in the handwriting of Samuel Manning.
The notice of protest was, under the decisions of this court, clearly defective and insufficient to charge the appellants as endorsers; but under the act of 1825, ch. 117, we are precluded from noticing the point, inasmuch as it was not made at the trial below.
In regard to the application for a procedendo, we remark, that there is nothing of merit disclosed to us by the record, by which we are to be governed, whatever may be the true state of the facts of the case. It was within the power of the parties at the trial, to have availed themselves of the defectiveness of the notice of protest. Not having done it then,, it is now too late. Besides the act of 1830, ch. 186, is a sufficient answer to the application.
Judgment affirmed.