| Md. | Jul 15, 1859
delivered the opinion of this court.
We find no error in the ruling of the Superior court upon the question presented by the first bill of exceptions. The alleged agreement between the defendant and H. S. Ward & Co.,
For the purposes of this exception, the fact thus offered to be proved must be taken as true, and is evidence from which the jury might infer that the plaintiffs acquiesced in the agreement and accepted the note, subject to its stipulations and conditions.
There can be no doubt that it is competent for a defendant to show by parol that a promissory note, on which he is sued as endorser, was delivered as an escroto, or that it was delivered to the plaintiff to be held upon a condition to be performed before the interest of the holder could attach. Bell vs. Ingestre, 64 Eng. C. L. Rep., 317.
In the case before us, in order to bind the plaintiffs by the alleged agreement, it was necessary for the defendant to prove to the satisfaction of the jury, that they (the plaintiffs) were parties to it, or had knowledge of it, and accepted the promissory note, to be bold by them, subject to its stipulations and conditions. In our opinion, the offer of the defendant was not supported by the proof given under it. This question might have been raised by an application to the court, based on its legal insufficiency. No such application was made, and we are compelled to pass on the exception, as it was taken at the trial and presented in the record.
The second exception brings before us for review,, the action of the Superior court upon the prayers, of which the plaintiffs offered one that was rejected, and the defendant two, which were granted.
The plaintiffs’ prayer was properly refused. In order to fix the liability of the defendant, notice to him of the non-payment of the note was necessary. That was evidenced by th© certificate of the notary, which the Act of 1837, ch. 253, makes
The sufficiency in law of the demand and notice, as evidenced by the notarial certificate, to charge the defendant, must be determined by the court. In this case, that depends' upon the fact that the makers of the note were non-residents, which ought, also, to have been submitted to the jury by the plaintiffs’ prayer.
In granting the defendant’s prayers, the court instructed the jury that the notarial certificate “was not sufficient evidence that the note was duly presented for payment.” This instruction, we think, was erroneous. The note was drawn by Ward & Co., who were, at the time of making it, and continued to be, non-residents of the State of Maryland. It was dated “Baltimore,” and the presumption is, in the absence of proof to the contrary, that it was payable there. 10 Md. Rep., 103. When the makers of a note do not reside in the State, and have no place of business within the State, no demand upon them is necessary. Story on Prom. Notes, sec. 236. 3 Kent’s Com., 96.
The prayers of the defendant, in this case, assume the fact that the makers of the note “'had not, nor had either of them, his or their domicil, or place of business, within the State of Maryland.” That fact excused the holder from making demand upon them in Baltimore, where the note was payable, for the attempt to do so would have been futile. There was, therefore, in our opinion, error in granting the defendant’s prayers.
The action of the Superior court, set out in the third except tion, was in conformity with its 35th and 36th rules of practice. Such rules are necessary for the orderly transaction of the business of the court, and'we think they were properly enforced in this case.
Judgment reversed and procedendo ordered.