Martin v. Dortch , 1 Stew. 479 ( 1828 )

JUDGE SAFFOLD

delivered the opinion of the Court.

The judgement of the Court in sustaining the demurrer is one of the causes assigned for error. In the discussion of this assignment, the questions were presented whether the defendant below, by specialplea^ could deny the due execution of the instrument, or the authority of tbe attorney in fact to represent him therein, or could it only be done in tbe common form of the plea of non est factum; and in either event can the defendant as the personal representative of,the contracting party, avail himself of such defence, without making affidavit according to statute of the truth of the plea? The manner and circumstances under which a deed has been executed often involve questions of law as to its validity,and as to tbe sufficiency of the facts to sustain the plea of non est factum. It may frequently occur that the defendant is incompetent to determine the truth of the plea; yet he may safely sweat to the facts relied on in support of it. Hence we are of opinion, as was ruled in the case of Tindall against Bright, ^a in this Court, that the defendant may by special plea, stating the circumstances, deny the legal effect or validity of the bond on which he is sued. .To determine whether an executor or administrator is authorized to plead non est factum generally or specially, without accompanying his plea with an affidavit of its truth, reference must be had to the statute; ^b the language of which is found to be “that no plea of non est factum shall be ad-mittecl to be pleaded, but when accompanied with an affidavit of its truth.”

The statute contains no qualification or exceptioja ás to persons, but applies to all pleas of that denomination. It is true that the representative may not possess information which will enable him to deny so absolutely the fact of execution, as the party if living might be required to do; yet he can safely swear to the best of his information and belief. This, it is conceived, would be sufficient. To permit representatives to deny the execution of such evidences of debt without restraint, and to subject the plaintiff in all such cases to the necessity of proving the due execution of the instrument by the decéased, and the authority of his agent or attorney when the contract purports to have been executed by one, and this on bare averment by plea, would produce all the inconvenience and difficulty which the statute designed to avoid. To require this proof only in case of conveyances and other instruments, where probate is necessary within a limited time after the execution, or at least on trial, whether the party be then living or not, is not a requisition subject to like objection ; because the person interested Í3 presumed to be prepared for it. But with respect to bonds and notes whereby law proof is not necessary, unless there be a denial on oath, and wheie. full confidence exists between the parties, the death of the debtor, and the unexpected requisition of this proof, would tend strongly to surprize and defeat the creditor.

It is further objected that the form of executing the bond is insufficient, for the reasons that the promise was made in the singular number, that the first signature thereto is the proper name of Huff, the attorney, that the only seal is immediately annexed to his name, and that the following words, “for Joseph Heslip,” &c. do not vary Huff’s responsibility, or constitute Heslip an obligor. Whether the promise be in the singular or plural, is believed to b'- immaterial; it applies to each person whose signature is covered by it, and under our statute binds them jointly and severally We hold it also immaterial whether the name of the agent or of the principal be first inserted, so that the capacity of each is sufficiently defined. In the case of Jones’ devisees against Cartet, ^b it is said to be “indifferent whether an attorney sign a deed, B. W. attorney for R. C.” or “i?. C. by B. W. his attorney.” Here we find the signature of Huff for Joseph Heslip, &c. the word attorney or agent is not expressed, but is sufficiently implied. As to the seal, it is conceived to be quite sufficient, if several choose to adopt the same ; provided it sufficiently appear that such was their intention. Here we think no other inference can be drawn, than that Huff intended by his signature and the seal annexed, to represent all the persons for whom he .professed to act.

On the last assignment of error, it is remarked, that in permitting the plaintiff below to withdraw his demurrers to some of the defendant’s pleas, and to reply without the payment of costs, there was no error. This was a matter in the discretion of the Court.

Judgement affirmed.

Judges Taylor and White not sitting.

a «Mmor’sAla.n, p

b Laws Ala. 454» <

b a 4 Hen. ScMun. 184.