McWhorter v. Lewis , 4 Ala. 198 ( 1842 )

COLLIER, C. .1.

Lazarus, use,&c. v. Shearer, [2 Ala. Rep. 718,] was an action against the defendant as the acceptor of a bill of exchange, which was addressed to and accepted by him, as “ President of the Selma and Tennessee Rail Road Company.” The cause was tried on the'plea of non assumpsit, under which it was attempted to be shown that the bill was drawn and accepted on account of the indebtedness of the company to the drawer, and was received by the payee as imposing a liability on the corporation. But the question of the admissibility of such evidence being raised, this Court were of opinion that it was doubtful, from the face of the contract, whether it was intended to operate as the personal engagement of the defendant or to impose an obligation upon the corporation — and that extrinsic evidence was admissible to show the true character of the transaction. Yet inasmuch as the evidence went to deny that the acceptance was, in law, the defendant’s act, as the declaration alledged the plea under which: the defence was made should have been supported by affidavit, as required by statute. [Aik. Dig. 283, §137.] ■

In that case the question of the legal sufficiency of the plea was not made, but the adaptation of the evidence to the issue was reserved by bill of exceptions. Here it is insisted, that the plea which specially sets forth the facts intended to be proved, in order to show that the note declared on, (though made by the defendant,) contained the promise and undertaking of the corporation, is defective for the want of an affidavit. In McAlpin & McAlpin v. May, [1 Stew. Rep. 520,] it was held that a demurrer to a plea reaches the want of an affidavit of its truth, when that is necessary. This decision has been often reaffirmed, and could not be departed from at this day, even if wethought that the law should have been otherwise settled.

The matter of the second plea seems to us to present a sufficient answer to the action, and if either it, or the general issue on which the case was tried, had been verified, we should have no difficulty in reversing the judgment. But our duties are defined by law, and we cannot afford to the plaintiff in error the benefit of a defence of which, by the manner of pleading, he has deprived himself.

The judgment of the Circuit Court is affirmed.