delivered the opinion of this court:
This was an action instituted in the circuit court for Prince George’s county, by the appellants against the appellee, as endorser on two promissory notes, one for $352.96, dated the 15th of September 1857, payable sixty days after date, and the other for $356.53, dated the 29th of May 1857, payable six months after date.
The appellee pleaded that he did not promise as alleged, and issue was joined on this plea.
At the instance of the parties, a commission to take testimony was issued to two commissioners in Alexandria, Va., who executed the same, and returned their commission and testimony taken by them to the circuit court for Prince George’s county.
At the trial of the cause, the appellants, to maintain the issues on their part, proved that they constituted the firm of *153William T. Walters & Go.; they further proved that when the said notes sued on became due and payable, the same were properly presented for payment, and being unpaid, due and proper notice of demand and non-payment was given to the appellee. The appellants then proved that the signatures of George W. Harrison to said notes are in his proper handwriting, and that the signatures of Munroe, on the back of said notes, are also in the handwriting of said Harrison. The appellants then offered in evidence the proof taker, under the commission, except the testimony of Jamas M. Benton, to whom, as a competent witness, they excepted. The appellants then proved that the appellee had stated, on frequent occasions, and once on oath, in his examination as a witness in court, at Alexandria, Ya., that he had procured the execution of the deed from Harrison to Funston. This deed and the testimony taken under the commission, are set out at large in the case of Whiteford vs. Munroe, decided at this term, (ante 135.)
The appellee objected to the admissibility of the deed, and the court sustained the objection, and refused to allow it to be read to the jury, and the appellants excepted. We think the court acted properly.
The notes in controversy are not described in the deed, nor are they identified by any of the declarations of the appellee. And it could not be relied upon as evidence-that Munroe had authorized or sanctioned the use of his name by Harrison, as now contended for in argument. The prayer in the second exception was properly rejected.
There is no evidence that Munroe had notice that his name had been used by Harrison, until after these notes became due, and consequently he cannot be said to have authorized the endorsements, even if notice could render him liable to a party who received the notes without knowledge of such implied authority; which point, however, we do not decide.
The plain tiffs’ prayer in the third exception was properly rejected, for the reasons assigned by us in disposing of the eighth exception in the case of Whiteford vs. Munroe, ante 149.
*154(Decided March 27th, 1861.)We approve of the court’s instruction in the third exception. It put the appellant’s case to the jury upon the only hypothesis to which he was entitled'.
Judgment affirmed.