delivered the opinion of this court.
The appellees instituted suit in the circuit court for Prince George’s county against the appellant, to recover the amount of five promissory notes, of which George W. Harrison was the drawer, and the appellant, together with James M. Benton and Elizabeth Harrison, were endorsers.
The appellant pleaded that he did not promise as alleged, and the appellees, by their replication, joined issue thereon.
At the trial of this cause, the appellees offered in evidence to the jury, the testimony taken under a commission to Jonathan S. Ely, of the city of New York, for the purpose of showing a sufficient demand of payment and notice of dishonor to the appellant, as endorser, but the appellant’s counsel objected to the sufficiency of said proof for the purpose for which it was offered, but the court overruled the objection and permitted the proof to go to the jury as sufficient evidence to prove a demand and notice, to bind the appellant, as endorser. The defendant then offered the evidence of James *164M. Renton, contained in the second exception, and prayed the court to instruct the jury that if they should find from the evidence that the names of James M. Benton and of Elizabeth Harrison, as alleged endorsers, on said notes, were not in their proper handwriting respectively, but were forgeries, and made by the said maker of the notes, without their knowledge or consent, that then they must find a verdict for the defendant, but the court refused said prayer of the defendant, but instructed the jury, that notwithstanding they may find that the names of James M. Benton and Elizabeth Harrison, the alleged first and second endorsers on said notes were forgeries, yet if they found from theevidence that the signature of John H. Munroe, the defendant, the alleged last endorser, was in his own proper handwriting, or made by his authority, that the plaintiffs were entitled to recover in this action. To which opinion of the court, and to its instruction to the jury, the defendant excepted, and the verdict and judgment being against him, he appealed to this court.
The ruling of the court below in the first exception, we approve. By reference to the commission and the testimony taken under it, and which was submitted to the jury, it will appear that the several notes in controversy in this suit, were regularly protested, and the several protests, under the notarial seal of the notary, contain every material allegation of a proper protest. It was objected by the appellant’s counsel that the notary employed clerks to perform part of the duties incident to his office. We cannot regard this as a valid objection. In a commercial community so extensive as New York, it would be almost impossible for a notary to execute every portion of his duty without aid, and the custom of merchants, and the current of authorities upon this subject, sanction the employment of such aid.
It was also objected that the commission, when executed, was not properly authenticated and returned. This objection, we conceive, has no weight. It will be seen by reference to the record, that the commissioner, Jonathan S. Ely, returned “said commission together with his return thereto, and sundry other papers connected therewith, which are in *165the words following, to wit,” &c., and at the conclusion of the commission, though he signs his name as Notary Public, yet the commission is endorsed, “the execution of this commission appears in a certain schedule hereunto annexed. Jonathan S. Ely, Oommr. Seal.”
(Decided March 27th, 1861.)The second exception seems to have been very hastily and imperfectly drawn, and does not present the question upon which, we suppose, the circuit court decided. If the evidence taken under the commission in Alexandria had been embraced or referred to in this exception, we should be prepared to affirm the action of the circuit court upon the defendant’s prajmr. But we are compelled to deal with the exception as it is brought before us, and must reverse the judgment both upon the refusal of the defendant’s prayer and the instruction granted by the court. This last is liable not only to the objection, before stated, of having no evidence to support it, set out in the exception, (to which we are confined in passing upon the prayer,) but it is also liable to the objection that it informs the jury that the plaintiffs are entitled, to recover, upon the finding only that the signature of the defendant was in his proper handwriting or made by his authority. Thus omitting, entirely, material facts which were necessary to the maintenance of the action, and however clear the evidence may have been to prove the facts, it was necessary for the jury to pass upon it. See 10 Md. Rep., 346, and 16 Md. Rep., 445, and the cases there cited.
Judgment reversed and procedendo awarded.