Ford v. Branch of the Bank of Alabama at Decatur

6 Ala. 286 | Ala. | 1844

COLDTHWAITE, J.

1. The proposition by Rhea, and its acceptance by the Bank, does not amount to a contract to pay 20,000, or any other specific sum for the goods; and if there was any subsequent agreement between them, ascertaining how the goods and groceries should be sold, it is not brought to our view by the bill of exceptions. The mere acceptance of this proposition, or even the taking of the goods under it, was no dischai’ge to these parties. All that they have a right to require is, that the proceeds of the goods, when sold, should be faithfully applied to the discharge, pro rata, of the debts intended to be covered by Rhea’s proposition.

The Bank had the right, most certainly, to accept from Rhea/ any additional security for the debts due by him, and such an acceptance is for the benefit of those who are collaterally, or eveli directly liable for the same demands.

What might be the effect of a misappropriation of the proceeds, or of a conversion of the goods thus placed in the hands of the Bank, is a question not raised in the court below, and we can perceive no error in refusing to give the charge asked for, dr in that given.

2. The objection to the certificate, and to the period when it Was made, cannot avail the defendants. The object of requiring a certificate was to prevent suits from being instituted in the nam'e of the Bank, when it had no real interest in the action. It is true, the charter of the' Bank provides, that it rriay move for judgment upon producing to the court the certificate of its president that the debt is really and bona fide its property, [Clay’s Digest 98, § 8;] but this by no means indicates that the certificate' must necessarily be in existence before the motion is made. Let it be supposed that a defective certificate is produced in the first instance; can it be tolerated that the Bank is powerless to avoid the consequences which must flow from that condition of the paper? The construction contended for would prevent the proper officer from correcting his mistakes, unless they were discovered-previous to the motion. The constant practice is, we believe, to make out their certificates after notice has been given, and we ean perceive no reason w’hy it may not be made at any time before the rendition of the judgment.

Judgment affirmed.