12 Ala. 463 | Ala. | 1847
The case of The State Bank v. Colgin, at the last term, is decisive as to the sufficiency of the certificate of the bank commissioners, and of the power of attorney from them to him, to act.
It does appear from the record, that the certificate of Mr. Holcombe, as the agent of the commissioners, that the note was the property of the bank, was produced to the court, which is sufficient to give the court jurisdiction, within the authority of Smith v. The Branch Bank at Mobile, 5 Ala. 26.
The act of 1841 (Clay’s Dig. 112, § 47) provides, that “ all the notes, bills, bonds, or other evidences of debt, held by the State bank or branch banks, payable to the cashier, or the person who has filled the office of cashier, of said bank, or branch banks, 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.” The construction now for the first time attempted to be put upon this act, that it applies only to such notes, or other evidences of debt, as were then held by the bank, is wholly untenable. The intention of the legislature was to pass a general law, applicable to the bank, not only then, but in future. The phraseology upon which this criticism has been made, was employed by the legislature, to make the act apply to notes then held by the bank, and upon which suits had been commenced before the passage of the act; the second section providing expressly, that where such suits had been com
From this it follows, that no proof is necessary on the part of the bank, beyond the production of the note, unless the execution of the note is denied by a sworn plea, any more than is necessary where the pote is made payable to the bank directly. It is in legal effect the same, as if the note was thus made payable, and this has been the uniform construction of the act ever since its passage. [Crawford v. The Br. B. at Mobile, 7 Ala. 383.] It is urged, that the court certainly erred in instructing the jury, that the allegations of the notice established the right of the bank to sue in its own name ; but although there may be a verbal inaccuracy in this, it could not possibly prejudice the defendant, as the court might, and should have instructed the jury, that no proof whatever was necessary under the pleadings, beyond the production of the note, and so in effect it did instruct them, in the concluding part of the same sentence ; “ that it was not necessary for the plaintiff to show, that Holcombe was the cashier, or that the note was indorsed to the bank.” There is no error in the record. Let the judgment be affirmed.
