18 Ala. 606 | Ala. | 1851
This was an action of debt brought by the plaintiff in error to recover of the defendants upon a writing, in the following form — “ $2535. — By the 25th December next, I promise to pay the Thomas J. Moore, administrator of H. H. Moore, deceased, twenty-five hundred and thirty-five dollars,
The first count of the declaration describes this instrument as a writing obligatory — sealed, See. The second count declares upon it as a promissory note. The common indebitatus counts are added. The defendants pleaded to all the Counts, “ that they did not owe the said sums of money demanded, or any part thereof, in manner and form,” See. ; and to the 2d, 3d and 4th counts they pleaded the action did not accrue within six years next before the commencement of this suit, Sec. The plaintiff took issue upon the first plea, and to the second replied that the defendants did, within six years next before the commencement of the suit, undertake and promise, &c. Rejoinder that the said Penelope N. Leseur did not, while sole and unmarried, promise within six years next before, Sec. To this rejoinder the plaintiff demurred, and the court sustained the demurrer.
The plaintiff having introduced and closed his testimony, the defendants filed their demurrer thereto, in which the plaintiff joined, and thereupon the court adjudged the law upon the facts in favor of the defendants and gave judgment against the plaintiff for cost.
It appears from a bill of exceptions, which it is agreed shall be considered as containing the facts, as if set out in a demurrer to the evidence, that the plaintiff read to the jury the note signed by Penelope N. Moore, who was sole at the time she gave the same, and to which note, after the signature, was a scroll composed of circumflex lines, within which was written the word “seal.” There was some evidence from which a jury might infer a promise on the part of Leseur to pay the debt sued for within six years next before the commencement of the suit. At all events, we will consider this fact as conceded, since the concession does not affect the result of the cause in this court. It appears, further, that Mrs. Leseur has a separate estate settled upon her, and that her husband is, and was at the time he acknowledged this demand to be subsisting against him, her trustee of such estate.
Several grounds are taken in this court by the counsel for the plaintiff in error, why this judgment should be reversed. We have deliberately considered them, and will now state, as briefly as we can, our conclusions.
2. But it is here insisted that the plea of nil debet was no plea to the first count, and that the court should’ have entered upon that count, nil dicit. We concede, the plea was bad to the first count. Such have been our uniform decisions, and such was the practice under the rules of the common law. — 1 Chitty’s Pl. 482. But the plaintiff took issue upon it without objection, and went to trial. It is then too late to object for such informality. He treated it as a legal plea, and the cause under the issues presented went against him; he ought not now to be allowed to allege its invalidity, as under such a precedent, a plaintiff might often find it highly advantageous to take issue upon a bad plea, since, if he lose his case, he would be sure of setting the proceedings aside. The court did not err in refusing to arrest the judgment, and of course should not have rendered judgment for the plaintiff. The case of Meyer v. McClean, surv., &c., 1 Johns. R. 509, (S. C., 2 ib. 183,) fully sustains this view. The plea must be demurred to, if the plaintiff desires to object to it. — 2 Johns. Cas. 257; Bullis v. Giddens, 8 Johns. R. 83. So when, to an action of debt, the defendant pleaded non assumpsit, and issue was taken and tried, it was held that he could take no advantage of the irregularity.— Stone v. Gover, 1 Ala. 287.
3. The plaintiff contends that the plea of nil debet admits the instrument declared on to be a sealed obligation, and that therefore the defendant could not object to its legal effect as such.
4. The next, and the important question in this case, is, whether the note sued upon is or is not a sealed instrument. This question, the plaintiff argues, should be tried by the jury. We do not think so. It is peculiarly the province of the court to construe written instruments and expound them to the jury when requested to do so. — Long v. Rodgers, 17 Ala. 540; Bank at Mobile v. Boykin, 9 ib. 320. If the court refer their construction to the jury, it is the reference to them of a legal question, and clearly erroneous. The court must look to the instrument itself to ascertain its character, and in this view, it is wholly immaterial what the parties intended, unless the evidence of their intention is found upon the face of the writing, there being no such ambiguity as would authorise explanatory parol proof.
5. We come then to consider, what is the character the law affixes to this instrument. It is very clear that the statute of 1839 can have no influence upon this contract, which was entered into before it was passed. That statute was not designed to change the nature of contracts already made, but to operate prospectively ; hence the instrument in question must be tested by the law which existed at the time of its execution. Thus tested, we have no hesitation in pronouncing that the word seal, written in a scroll after the signature, without any thing further to indicate the intention of the parties to make it a sealed instrument, does not constitute it a specialty. This precise question
We think it is clear, under our previous decisions, from which we are not at liberty to depart, as we should doubtless destroy rights which have grown up under them, that this is not a sealed instrument.
6 — 7, The remaining inquiry is, conceding that the husband promised to pay this demand, would such promise under the pleadings in this cause, take the case without the influence of the statute of limitations, so as to authorise a judgment against the husband and wife, or if not against both, whether such promise would justify the court in rendering judgment .against him alone ? It is very clear that no judgment could properly be rendered in this case against the husband’ alone, for the reason that there are no allegations in the pleadings which would'
The case of Powell v. Powell, 10 Ala. 900, does not militate against the view here taken. In that case, it was held that the admissions of the husband, made in a conference with the supposed debtor to the wife, arising out of transactions with her while sole, that nothing was due, cast upon her the burthen of showing that the parties were mistaken. The husband has power to release or discharge the debtor from liability on choses in action accruing to the wife while sole, (Clanc. H. & W. 110,) and his admission during the coverture, that nothing was due him in her right, may well be received against her after the termination of the coverture; but it is quite a different question whether he can create a liability upon the wife, or revive an extinguished liability, so as to charge her in a court of law, either with or without her consent. That he occupies the relation of trustee of her separate estate, makes no difference whatever, so far as the legal remedy is concerned. It is only in a court of equity that she can be treated as though she were sole, in respect of her separate estate, We would not, however,
It follows from the views we have expressed, that the court did not err in giving judgment upon the demurrer for the defendants below. It is therefore affirmed. ■