| Ala. | Jan 15, 1875
As maker or indorser of a promissory note, or other contract in writing for the payment of money, a person may become liable, by any signature he thinks proper to adopt. It is not material whether he uses initials, or a mark, or any other designation, if his intention is to bind himself. Brown v. Butchers' Drovers' Bank, 6 Hill, 443.
At common law, when a written instrument was the foundation of suit, if by a proper plea the execution of the instrument was put in issue, the plaintiff was bound to prove that the defendant, or some one acting by his authority, actually signed the instrument. The statute of this state declares all written instruments, the foundation of the suit, purporting to be signed by the defendant, his partner, agent, or attorney in fact, must be received in evidence, without proof of the execution, unless the execution thereof is denied by plea, verified by affidavit. R. C. § 2682. This section of the Code is a substantial reenactment of the territorial statute of 1811, (Clay’s Dig. 340, § 152,) and must receive the construction given to that statute, in obedience to the rule, on which this court has uniformly proceeded, that in the adoption of the Code, the legislature is presumed to have known the judicial construction former statutes had received, and therefore the reenactment in the Code of provisions substantially the same as those contained in the former statutes, is a legislative adoption of their known judicial construction. Ala. Coal Mining Co. v. Brainard, 35 Ala. 476" court="Ala." date_filed="1860-01-15" href="https://app.midpage.ai/document/ala-coal-mining-co-v-brainard-6506653?utm_source=webapp" opinion_id="6506653">35 Ala. 476 ; 1 Brick. Dig. 349, § 2. The construction of the statute of 1811 was, that the allegation of the execution of the instrument sued on was mere matter of description, and if the instrument produced conformed to the description, no proof of execution was necessary, in the absence of a verified plea. Dew v. Garner, 7 Port. 503" court="Ala." date_filed="1838-06-15" href="https://app.midpage.ai/document/dew-v-garner-6529367?utm_source=webapp" opinion_id="6529367">7 Port. 503; Stone v. Gover, 1 Ala. 287" court="Ala." date_filed="1840-01-15" href="https://app.midpage.ai/document/stone-v-gover-6501287?utm_source=webapp" opinion_id="6501287">1 Ala. 287;
The promissory note on which this suit is founded, appears on its face -to have been signed by the appellant Wimberly with his mark, and is not attested. This signature, it is insisted, is insufficient to bind him without proof of execution, under the first section of the Code, which declares “ signature ” or “ subscription,” when used in the code, includes mark when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness. The answer is, that no verified plea denying the' execution having been interposed, the fact of execution was not in issue. It was not material how the note was signed, whether with a mark, or with the real name of the appellant, or with a fictitious name, or with any designation he had thought proper to adopt. Failing to interpose a verified plea, he had admitted of record the execution of the instrument. Beside, no proof was offered that he was unable to write, or that he did not in fact write his name, and make the mark, and it is only as to persons who cannot write that the definition of the Code applies. As presented, the question is, whether the note is in legal contemplation the act of the appellant Wimberly — whether it imposes on him a legal obligation or duty. That question, it was determined in the cases of Fowlkes & Co. v. Baldwin Co., Lazarus v. Shearer, McWhorter v. Lewis, supra, could be presented, under the statute only by a verified plea. The fact of execu
The judgment is affirmed.