Tarver's Ex'rs v. Boykin

| Ala. | Jan 15, 1844

COLLIER, C. J.

This cause was submitted without brief or argument indicating the legal questions proposed to be raised; and we are at loss to perceive even the semblance of error in the judgment of the circuit court. To disprove the first plea, it was only necessary for the plaintiff to produce the note declared on, with the indorsement of the payee, and to show that it was duly presented at the place appointed for its payment, prove its non-payment, and that the defendants were seasonably advised thereof, either by personal notice or through the medium of the post office. Upon the second plea, it was not necessary to • show more, than, that the defendants had received letters testamentary under a grant thereof by the county court of Russell. If they failed to qualify, by executing a bond and taking the oaths prescribed, or having taken upon themselves the trust, they af-terwards resigned it, they should have shown the fact, and the court could not, upon their demurrer, have intended it. The fair inference, from the manner in which the evidence is recited, is, that the testator’s will was proved at the instance of the defendants, and that they took upon themselves its execution. The second and third sections of the act of 1821, expressly enacts, that before letters testamentary or of administration shall be granted, or issued, the executor or administrator shall take an oath and execute a bond for the faithful performance of his duties according to law. The grant of letters testamentary supposes that all the prerequisites have been complied with; and having received them, an executor would not be permitted to repudiate the trust by showing that they were prematurely issued.

In respect to the fact that the note was not presented for payment until the fourth day of January, it may be remarked, that even if it were doubtful whether it is such a paper as is entitled to days of grace according to the principles of mercantile law, it can be no longer a matter of doubt in this State. The act of 1828 provides, “that hereafter the remedy on bills of exchange, foreign and inland, and on promissory notes payable in bank, shall be governed by the rules of the law-merchant as to days of grace, protest and notice.”

As to the statement in the demurrer, that the plaintiff proved the rate of interest in Georgia, without proof that the note was there made, it is a point wholly immaterial; for’, independent of that recital, the evidence is sufficient to show the plaintiff’s right to recover. The jury ascertained the damages, and we must suppose that they had ample evidence • before them to show where the note was made.

The notice of non-payment was strictly correct. The judgment of the circuit court is unobjectionable in point of law, and is consequently affirmed.