| Ala. | Jul 1, 1892
— Action by Berney National Bank, on promissory note executed by S. J. Darby, the defendant, and one Westbrook, who is not sued. The complaint alleges that said note was “payable.....to the plaintiff by the name and style of J. B. Cobbs, Cashier, and that the said J. B. Cobbs was at the time of making said note cashier of the plaintiff bank, and that the plaintiff was intended to be designated as payee by the use of the words ‘3. B. Cobbs, Cashier.” There was no indorsementof the paper by Cobbs ; and the point is taken by demurrer that the complaint shows the legal title to the note to be in Cobbs, and hence that plaintiff was without right to maintain this action. The authorities are opposed to this position, and the law may be said to be well settled that in a case like this the legal title is in the bank, and it may sue in its own name, averring either that the promise was made to its agent for it, or that the agent’s name was used by adoption for that of the principal. The demurrer was properly overruled. — 2 Dan. Neg. Instr. §§ 1187-8-9; 1 Rand. Com. Paper, § 157; 2 Rand. Com. Paper, § 1657; Tied, on Com. Paper, § 88; Alston v. Heartman, Treas. &c., 2 Ala. 699" court="Ala." date_filed="1841-06-15" href="https://app.midpage.ai/document/alston-v-heartman-6501512?utm_source=webapp" opinion_id="6501512">2 Ala. 699; Hazard v. Planters & Merchants Bank, 4 Ala. 299" court="Ala." date_filed="1842-06-15" href="https://app.midpage.ai/document/hazard-v-planters--merchants-bank-6501796?utm_source=webapp" opinion_id="6501796">4 Ala. 299.
The 2d plea which was not interposed “in short by consent but is in short without consent that “defendant pleads want of consideration” is bad in that it fails to aver the facts upon which reliance is had to defeat the action. Carmelich v. Mimms, 88 Ala. 335" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/carmelich-v-mims-6513700?utm_source=webapp" opinion_id="6513700">88 Ala. 335; McAfee v. Glen Mary Coal & Coke Co., 11 So. Rep. 881.
On the averments of the 3d plea a valuable consideration
The gravamen of the 4th and 6th pleas is that the principal obligor in the note sued on having died, the plaintiff failed to take the steps which the law authorized him to take to collect the amount evidenced by the note out of his estate, and hence he should not now recover from the defendant who is only surety thereon. Or, in other Avords, the defense attempted to be advanced by these pleas is that plaintiff by reason of his inactivity in respect of pursuing his remedies against the principal’s estate failed to enforce and collect his claim from that source, and lost the power so to do upon the final settlement of Westbrook’s estate. The release of the principal debtor in this Avay by operation of laAV which wrought the result through the mere passiveness of the creditor did not discharge the surety. — 2 Brick. Dig. p. 375, § 33 ; Evans’ Admr. v. Evans, 16 Ala. 465" court="Ala." date_filed="1849-06-15" href="https://app.midpage.ai/document/evans-v-evans-6504060?utm_source=webapp" opinion_id="6504060">16 Ala. 465; 2 Dan. Neg. Instr., § 1326; 2 Rand. Com. Paper, § 939.
The 5th plea, which is intended to set up the defense that plaintiff failed to proceed against the principal on the demand of the surety and in consequence of such failure the claim against the principal became Avorthless, is bad under the statute because, first, the requisition' alleged was to “collect” the claim from Westbrook, not “to bring suit thereon against the principal debtor” and, second, the requisition was not in writing. — Code, § 3153; Savage’s Admr. v. Carleton, 33 Ala. 443" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/savages-admr-v-carleton-6506395?utm_source=webapp" opinion_id="6506395">33 Ala. 443 ; and is bad at common law in that it does not appear therefrom that the principal was then solvent in the sense that payment of the note •could have been coerced by action, judgment and execution against him. The principal may then have had “ample means wherewith to pay said indebtedness” as averred in the plea, and yet an effort to enforce payment might for aught that is alleged have been entirely abortive, so that the plea fails to show affirmatively that the defendant was prejudiced •by plaintiff’s omission to proceed against Westbrook. 2 Brick. Dig. pp. 387-8, § 197 et seq.
Our conclusion, therefore, is that the demurrers to pleas were properly sustained, and our consequent conclusion that the case should not be reversed on account of the rulings with respect to the 2d, 3d and 5th pleas might be rested solely on the ground that the assignments of error which
Affirmed.