Trustees of the Gainesville Female Academy v. Brown , 3 Ala. 326 ( 1842 )

ORMOND, J.

The cases referred to by the counsel for the defendant in error, satisfactorily establish the position, that our statute, requiring the execution of any instrument sued on, to be questioned by a plea, verified by affidavit, applies to those cases where the instrument has been executed by one professing to be the agent of the principal. The only doubt which could arise, would be, whether the act applied to a corporation, but we can see no reason for thus restraining it. The fact, whether the corporation has authorised an agent to bind it, must be as well known to those who manage its concerns, as in the case of an individual, and such persons, or any of them, would be quite as competent to make the oath the statute requires. In Martin v. Dortch, 1 Stewart, 479, it was held, that an adm’r was competent to make the oath on the part of his intestate, and would only be required to swear to the best of his knowledge and belief. That case does not, in principle; vary from the present, and has always been acquiesced in, as a sound exposition of the statute.

There was no necessity cast on the plaintiff, to-prove the authority of the agent, Mobley — his right to bind the,corporation, being admitted, by the failure to interpose the oath' required by the statute.

Nor was it necessary to prove the consideration; the statute makes the instrument itself, unless questioned by plea, evidence of the debt or duty for which it was given; and if the contract was not binding on the corporation, because not within the scope of its legitimate purposes, as designed in its creation, such fact should have been shown by plea; the failure to interpose which, is at least prima facie evidence, that the consideration on which it was given, was lawful. See the case of Lazarus and Shearer, at the last term.

There was no necessity to aver in the declaration, that the acceptor of the order was the agent of the corporation — the act of the agent is the act of the principal.

Let the judgment be affirmed.