McWHORTER v. LEWIS, use, &c.

McWHORTER v. LEWIS, use, &c. I. Where a promissor% note was subscribed thus, "A. A. M. President W. & Coosa It. It. Company," 4ie maker when sued may, under the general issue, or a plea stating:the facts sp~ially, defend himself against an action charging him per~ sonally, by p~dvii~g that the note was made for and on account of the corpora. ti~n designated; in virtue of an authority for that purpose, and so accepted by the payee. Bat a plea under which such defence is intended to be made, must be verified by oath, according to the statute of this State. ~. When the affidavit of the truth of a plea is necessary, the Want of it is a defeat available on demurrer. Wxx~ of Error to the Circuit Court of Autauga. The defendant in error declared against the plaintiff in as-sumpsit on a promissory note of the following tenor, viz: "~553 00. On the first day of January next, I promise to pay Henry Lewis, or bearer, five hundred and fifty-three dollars, for the hire of three negro men for the present year, to wit, Billy, Abram and Anderson, this 19th January, 1888. ALVIN A. McWxoRTxx, President W. 4~ Coosa 1?. R. Company.". The defendant pleaded-i. Non assumpsit. 2. That the Legislature, on the 9th of January, 1836, incorporated by statute the Wetumpka and Coosa Rail Road Company,and among other powers authorized it to elect a President and Directors. On the 4th June, 1836, the Company elected a Board of Directors, who being duly organized, elected the defendant their President. Afterwards, on the 25th December, 1837, the Directors, in virtue of the charter, authorized the defendant to employ, by hiring, slaves and other able bodied hands to work and be engaged in the service of said Company. The plea avers, that in pursuance of the directions of the Company, the defendant hired of the plaintiff three slaves, to wit: Anderson, Bill and Abram, as the agent and President of the Board of Directors, and in that character and none other made the note declared on — that it was delivered to the plaintiff and accepted by him as the note of the Company, and not as the individual note of the defendant. And therefore it is alledged_ihg¿j¡be credit was given by the plaintiff to the Compafl^^iJ^ji^ the defendant acted in his official capacity ¡/fuct|t&r that tne | labor and services of the slave were receive®, Exclusively «Fret the Company. \ The plaintiff took issue on the first plea ancf demurred tgjhí, J second — his demurrer being sustained the canomitted to a jury, who returned a verdict in his favor, otfewhish ivtfgT ment has been rendered. On the trial the defendant excepted to the ruling of the presiding Judge. From the bill of exceptions it appears that the plaintiff introduced the note in suit, and rested his case. The defendant then proposed to prove that he was duly and legally elected President of the Wetumpka and Coosa Rail Road Company, that the Board of Directors, on the 25th of December, 1887, authorized the defendant, as President of the Company, to employ, by hiring, slaves and other able bodied hands to work and be engaged in the service of the said Company, and that in pursuance of the order and direction of the Board of Directors, he, defendant, hired of the plaintiff three slaves, named in the note, as the agent and President of the Board and Company, and in that character, and none other,made the note for the hire of the slaves. That the plaintiff gave the exclusive credit to the Company, and received the note as its promise and undertaking — further, the Company received the entire benefit of the services of the slaves hired. T. Williams, with whom was S. Storrs, for the plaintiff in error. PRYOR, for the defendant. [MAJORITY — COLLIER, C. .1.] 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.