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.
*148At 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 express no opinion,) yet they cannot be construed so to include these notes, as to make the deed itself any evidence of a recognition by Munroe, of his liability upon them.
The prayer in the third exception is liable to the same objection as that in the first, and, for the same reason, (he court was right in rejecting it.
*149(Decided March 27th, 1861.)The first prayer in the fourth exception was properly refused, because there is no evidence So sustain the theory of it.
The second prayer in the same exception couid not be granted, because, assuming as it, does, that Beaton’s endorsement is not genuine, then, in order to bind Munroe, it. was necessary to find, not only that his name was signed by his authority or sanction, but also that Benton’s name was endorsed with Munroe’s knowledge and consent, of which, the record furnishes no evidence. We are of opinion, that the appellant cannot complain of the instruction granted by the circuit court, as sot forth in this exception. It afforded him an opportunity to introduce the evidence which would enable him to recover, if the case admitted of such proof.
We approve of the court’s ruling, contained in the fifth exception — we can see no objection to the admissibility of Benton’s evidence. An endorser, when offered as a witness by the maker, is competent, because, although his testimony may defeat the action, and discharge the defendant, he might, nevertheless, be liable on the endorsement, and would lose the benefit of the judgment against the maker, to whom he would have a right to look for reimbursement. And, as to his supposed interest in the trust funds, it must be remembered, that the deed conveys the property of Harrison, and although Munroe ma]? escape this liability, it does not follow that the fund would be released from these notes as debts of Harrison.
We also concur with the court below in rejecting the prayers of the appellant in the sixth and seventh exceptions, there being no evidence to show the complicity of the appellee in placing the name of Benton, as endoiser on the notes, in this suit.
The prayer in the eighth exception was, in our opinion, properly overruled. This part of the case was argued as if it presented a question of implied authority; but that is not the point of the prayer. A party cannot be held liable upon paper, on which his name has been forged, merely because he may have paid other forged notes without objection.
Judgment affirmed.