Evans v. Norris, Stodder & Co. , 1 Ala. 511 ( 1840 )

ORMOND, J.

— The court did not err in permitting the deposition to be read. The declaration having described the persons composing the mercantile firm of Norris, Stodder & Co., it was sufficient to entitle other papers in the cause, such as affidavits, motions, commissions to take depositions, &c. with the style of the firm, which was doubtless its designation on the docket. The object being merely to identify it, as one of the papers of the cause. This is prima facie sufficient. If a doubt should arise, from their being more causes than one between the same parties at issue, to which the paper belonged, it would devolve on the party producing it, or relying on it, to show to which cause it belonged.

The dravver of an accepted bill of exchange, is entitled to notice of its dishonor, only when he can be prejudiced by want of notice; this he cannot be when he has no funds in the hands of the drawee: at least, this is well established as the general rule. Whether there may not exist cases, in which the drawer would be entitled to notice, when he had not funds in the hands of the drawee or acceptor, is a question not necessary to be settled in this case. We are not informed by the bill of exceptions, what the facts of the case were, and must assume therefore, that they were applicable to the charge, which is, in substance, that the drawer of an accommodation bill, is not entitled to notice of the non payment of the bill by the acceptor.

The plea of the statute of non claim, casts on the plaintiff the necessity of entitling himself to his action, by proving a demand of the representative of the deceased, within eighteen months after the'granting letters testamentary or letters of administration. To hold otherwise, would be to require what in most cases, would be impossible for the defendant to prove, that the claim was not presented within the time required by law. It is true, the plaintiff may in such a case, reply specially to the plea, that the defendant did not make the advertisement, which the law requires, within two months after the grant of the letters of administration. Such a replication, as it would admit that no presentment had been made, would present a new issue, the affirmative of which, would be cast on the defendant. In this case, the pleadings are in short, and we cannot presume that a special replication was put in by the plaintiff. Such being the case, the issue before the jury was, whether the claim was presented within eighteen months after the grant of letters of administration, and of which as before stated, the plaintiff held the affirmative.

The assignment of error, that the judgment was entered against the plaintiff in error, after the revocation of his letters of administration, and when he was not a party to the cause, is not sustained by the record. It is true, that there is an entry on the record, of a suggestion that the letters of administration of the plaintiff in error had been revoked, and a sci.fa. directed to issue to the sheriff, to make him a parly to the cause. The record contains nothing more on the subject; and at a subsequent term of the court, the record recites that the plaintiff in error, appeared by his counsel, and that judgment was rendered against him, on the verdict of a jury.

This we must presume to be the fact, unless we question the verity of the record. It does not appear that the sheriff was ever a party to the suit, and we must presume that the previous order substituting the sheriff for the plaintiff in error, as the defendant in the cause, had been vacated, or was waived by the counsel of the parlies.

For the error in refusing to charge the jury that the plaintiff could not recover under the plea of the statute of non claim, without proving a presentment of the claim within eighteen months after the grant of letters of administration.

The judgment is reversed, and the cause remanded.