1 Stew. 479 | Ala. | 1828
delivered the opinion of the Court.
The judgement of the Court in sustaining the demurrer is one of the causes assigned for error. In the discussion of this assignment, the questions were presented whether the defendant below, by specialplea^ could deny the due execution of the instrument, or the authority of
The statute contains no qualification or exceptioja ás to persons, but applies to all pleas of that denomination. It is true that the representative may not possess information which will enable him to deny so absolutely the fact of execution, as the party if living might be required to do; yet he can safely swear to the best of his information and belief. This, it is conceived, would be sufficient. To permit representatives to deny the execution of such evidences of debt without restraint, and to subject the plaintiff in all such cases to the necessity of proving the due execution of the instrument by the decéased, and the authority of his agent or attorney when the contract purports to have been executed by one, and this on bare averment by plea, would produce all the inconvenience and difficulty which the statute designed to avoid. To require this proof only in case of conveyances and other instruments, where probate is necessary within a limited time after the execution, or at least on trial, whether the party be then living or not, is not a requisition subject to like objection ; because the person interested Í3 presumed to be prepared for it. But with respect to bonds and
It is further objected that the form of executing the bond is insufficient, for the reasons that the promise was made in the singular number, that the first signature thereto is the proper name of Huff, the attorney, that the only seal is immediately annexed to his name, and that the following words, “for Joseph Heslip,” &c. do not vary Huff’s responsibility, or constitute Heslip an obligor. Whether the promise be in the singular or plural, is believed to b'- immaterial; it applies to each person whose signature is covered by it, and under our statute binds them jointly and severally We hold it also immaterial whether the name of the agent or of the principal be first inserted, so that the capacity of each is sufficiently defined. In the case of Jones’ devisees against Cartet,
On the last assignment of error, it is remarked, that in permitting the plaintiff below to withdraw his demurrers to some of the defendant’s pleas, and to reply without the payment of costs, there was no error. This was a matter in the discretion of the Court.
Judgement affirmed.
«Mmor’sAla.n, p
Laws Ala. 454» <
a 4 Hen. ScMun. 184.