Caldwell v. Branch of the Bank of Alabama

11 Ala. 549 | Ala. | 1847

COLLIER, C. J.

It is certainly true that in pleas in abatement, matters of form are regarded as substance, and that the statute abolishing special demurrers does not apply to them. [5 Ala. Rep. 617.] In Cobb v. Force, Brothers & Co. the plea in abatement of an attachment, set up two distinct grounds of defence, viz., that the plaintiff had not executed a bond and made the affidavit as directed by the statute. This court said, “ the rule is, that a plea is double when it states two or more facts, either one of which would constitute a defence.” So it has been held that a variance between the indorsement on the writ and the declaration, cannot be pleaded in abatement; but if the plaintiff should declare in a cause of action entirely different from the indorsement on the writ, the court would on motion refuse to permit the declaration to be filed. [7 Ala. Rep. 829.] In Coalter v. Bell, 2 Stewt. &. Port. Rep. 358, it was decided that where the facts averred in a plea in abatement do not appear upon the record, affidavit should be made of their truth ; and if they are not verified, a demurrer -to the plea should be sustained. Perhaps the matter of the plea in the case before us may be considered as verified by a comparison of the writ with the declaration ; but however this may be, is not the plea bad for duplicity? It insists that there is a variance between the writ and declaration; first, in the plaintiff’s name; and secondly, because the cause of action indorsed on the writ, is not that declared on.

The name of the plaintiff it is believed is substantially the same both in the writ and declaration, and this is considered sufficient. [Ang. & A. on Corp. 510 to 516.] But if the variance be material, we think the fair inference is, that the name of the plaintiff in the writ was intended to be the same as that stated in the declaration according to the act of incorporation ; that the writ may be amended on motion, and the mistake is no ground for abatement.' In respect to the in-dorsement on the writ, we have seen that its variance from the declaration cannot be pleaded in abatement; if it could, we should regard it as wholly immaterial.

• The cases cited by the counsel for the plaintiff in error, from 3 and 5 Ala. Reports, which decide that a bank cannot maintain an action upon a note payable to its cashier, without showing an indorsement were determined by the primary courts, and the former in this court previous to the passage of the act of December, 1841. The statute declares that all notes, &c. thus payable i: may be sued and collected in the name of the several banks, in the same manner, as if they had been made payable directly to the said bank, or branch banks by which the paper has been taken or discounted.” [Clay’s Dig. 112, § 47.] In Crawford, et al. v. Branch Bank at Mobile, 7 Ala. Rep. 383, it was held under the act cited that a note payable to “ B. Gayle, Cashier,” authorized the branch bank to sue thereon, and the inference was, that it had the legal title. There is then no error in the record, and the judgment must be affirmed.