Brooks v. Harris , 12 Ala. 555 ( 1847 )

ORMOND, J.

The bankruptcy of the plaintiff, certainly disabled him from the further prosecution of the suit, and made it necessary, either that it should be dismissed, or pro-seeuted in the name of the assignee in bankruptcy. The plea of the defendant, alledging the bankruptcy of the plaintiff* was certainly proper, but the suggestion of the same fact, by the plaintiff’s counsel, was in effect,-an admission of the truth of the plea, and rendered it inoperative, as it had performed its office. The substitution of Mr. Harris, the assignee, as plaintiff, on motion of counsel, must be understood to be with his consent, and if it was unauthorized, the counsel ■would be liable for the consequences of his act.

The due bill upon which the action is founded, was not executed by the defendant, Wilson, in person, and to bring it 'within the influence of the statute, making the instrument sued on, evidence of the debt, or duty, for which it was given, unless its execution is denied by a sworn plea, it must be al-ledged in the declaration, to have been executed by one, having authority to bind him. This is supposed to be the effect of the allegation here, but in our opinion no such effect can be accorded to it. It deduces the right of Brooks, to bind Wilson, from the fact that Wilson is a part owner with Brooks of the steamboat. The language of the declaration, is, that the due bill was made by Brooks, acting for himself, and as joint owner with Wilson, of the boat. But one part owner has not the power to charge another, by contracting debts in his name, and there is no allegation, that Brooks had authority, as agent of Wilson, to bind him by the execution of a note in his name. In Childress v. Miller, 4 Ala. Rep. 447, an attempt was made to charge the owners of a steamboat, on a due bill made by the clerk of the boat, “ for steamboat Choctaw, and owners.” It was held that these words, did not in themselves, import an authority to bind the owners, and that as the clerk of the boat as such, had not the right to admit an indebtedness on the part of the owners, the action could not be maintained. This is a decision expressly in point, as the statute applies only to such instruments ,as are the foundation of the action; and this not being signed by the party sought to be charged, could only be obligatory on him, by being executed in his name, by one duly authorized to bind him.

The first motion of the defendant for a charge to the jury, was not authorized by the evidence in the record, it is therefore unnecessary to decide how far, or to what extent a part owner, not engaged, or concerned in running, or navigating the boat, would be liable to the workman, for work and labor done upon the boat, not authorized by him.

Let the judgment be reversed, and the cause remanded..